But according to Talladega County Probate Judge Billy Atkinson, “It is asinine for any person that could make a will, in other words anyone over 18 years old, not to have one. It deals with your assets and liabilities, it names your personal representatives after you’re gone, the person who will act as an officer of the court to carry out your wishes after you’re gone. That’s serious business.”
Because of the seriousness, Atkinson said he has two other pieces of important advice. “Hire a lawyer. And be very wary of the Internet. You may pull up something from another state that’s different from what the law says in Alabama, or you might pull up something out of date or just flat out wrong. So avoid relying on the Internet. Get an attorney.”
Along with a will, Atkinson strongly recommends every independent adult also have a designated person with power of attorney and a health care directive, sometimes referred to as a living will, in case of serious illness or injury.
Atkinson’s office is responsible for running letters of testimony upon the death of someone who has a will (testate) and letters of administration if they don’t (intestate).
“Not everything has to be probated,” he said. “Life insurance proceeds pass outside the estate, and so do wrongful death benefits. If you own a home and have a right of life survivorship on the deed, it passes to your spouse. If you have a joint account, the surviving account holder inherits it outside, but also inherits the liabilities.
According to S. Dale Price, president of the Talladega County Bar Association, there are two or three different scenarios that can play out if someone dies intestate. “First, it depends on whether or not there are any step-relatives. If there are not, the surviving spouse gets $50,000 and half of what’s left. The remaining half goes to the children. If there are no children, the remaining half could go to grandchildren, nieces, nephews, cousins, etc. If there are no close relatives, the estate escheats to the state and basically ends up in the general fund in Montgomery.”
If there are step relatives, the surviving spouse gets half without the additional $50,000 and the children take the other half. The Legislature was trying to guess what most people would want in these situations.”
Parents of minor children should also take their kids into account in writing a will. “Regardless of the distribution, you need to designate a guardian to guarantee the child’s safety. You have the benefit of knowing your child will be taken care of. You can also designate a co-servator or trustee to look after the child’s financial interests until he or she is grown.
The cost of hiring a lawyer to draw up a will varies according to the size and complexity of the state, but in many cases can be done for $100 or less, Price said.
According to a pamphlet provided by Atkinson’s office from the Alabama School of Law, the author of a will may dispose of his property in almost any way he chooses. “But not quite. There are some limitations set by law to avoid placing hardships on the people who survive the deceased. … A lawyer can best explain these limitations.”
Your will can be changed at any time, and the old will remains in force until it is changed or the writer dies. Once it is written, it should be put in a safe place, such as a safe deposit box, and the heirs or representative should be told where it is. The lawyer who drafted it usually keeps a copy as well.
The will must generally be probated where the deceased lived, and must be filed within five years of death.