Anyone of legal age can legally create a will. Courts will try and give effect to the expressed intent of the testator, but certain formalities should be followed in the proper creation and execution of any Will. An experienced attorney can ensure that a complete disposition of property is made and no ambiguity is left open for interpretation.
A self-proving will is a will with an affidavit attached to it in which the attesting witness certify that the will was actually signed by the testator. Self-proving wills are a good idea in that they shorten the amount of time it takes to probate the will by not requiring the witnesses to come to court and swear that the testator actually signed the will. Our Birmingham attorneys know how to draft and execute self-proving wills.
Everyone of legal age who owns a checking account, a piece of property, any assets, or has a child needs a will. Without a will, the disposition of the decedent’s assets will be governed by the Alabama law of intestacy, and very well may end up in the hands of someone other than who the decedent would have wanted to have his property. In other words, if you die without a will in Alabama, your property will be disposed of through laws created by the Alabama legislature! Even people who have a trust should execute a will to ensure that any property outside of the trust is properly disposed. Parents of minor children cannot ensure who would care for their child in the event they were both killed, leaving the minor children behind. A will can effectively appoint a family member or friend as the custodian and guardian of the minor children, and prevent a family dispute over who gets the children when the parents are gone. Our Birmingham probate attorneys know how to effectively draft provisions in a Will to direct where the minor child would go in the event of the death of both parents.
A will can be changed by what is called a “codicil.” A codicil amends, rather than replaces, a will, and must meet the same formalities as the original will. The will is deemed “republished” as of the date of the codicil, which is important because any property disposed of by a will must be in existence at the time of execution. Basically, in order to change a will, simply make a writing of the amended disposition, sign it in front of witnesses, and have the witnesses attest to it. The courts will treat all papers intended to be part of the will as integrated into the will.
Your will, if valid, is effective for life. Wills do not expire, and unless you revoke the will, it will be given effect when you die. One exception to this idea is the concept of revocation upon marriage. If you make a will and subsequently marry a spouse who you fail to include in your will, courts can modify or revoke the terms of a Will, assuming that you forgot to amend the will to provide for your spouse. This is often referred to a pretermitted spouse.
Wills should be probated in the jurisdiction where the decedent was domiciled at death. This means wherever the testator’s primary residence was when he died, his will should be probated in that jurisdiction’s probate court. As mentioned, real property in another state will require ancillary jurisdiction (a separate proceeding in that state’s courts) to determine the disposition of that property. This is because each state has its own title system, and title must be cleared in the state in which the property is located.
If you die without a will, your property will pass through intestacy. This means the distribution of your assets will be subject to a set of default rules that vary by state, and might not go to who you want them to go to. Also, the State of Alabama will determine the custody of any minor children. Thus, it’s always a good idea to make a will. Any property that passes outside of probate (such as property under the terms of a trust or life insurance contract) will be unaffected.