Alabama State Specific Information

Will, Trust, Power of Attorney, and Estate Planning

Official state laws:

  • The Code of Alabama 1975
  • Probate jurisdiction rests with the Probate Court (Section 12-13-1)
  • Probate laws are primarily in: Title 12 Ch. 13; Title 40 Ch.15; and Title 43, Ch. 8

Minimum age requirement to:

  • Distribute property by will: 18 (Section 43-8-130)
  • Which minor gets property: 21

Holographic will not recognized (No Section exists)

State Taxes:

  • Estate tax: Equal to federal credit for state death taxes (Section 40-15-2)
  • State gift tax:Inheritance tax: No inheritance tax (Section 40-15-1 to 40-15-19)
    • No state gift tax (Section 40-15-1 to 40-15-19)
    • Anatomical Gift Act (Section 22-19-40 to 22-19-47)
  • Inheritance tax: No inheritance tax (Section 40-15-1 to 40-15-19)

Default Rules: How property is distributed if there is no will, i.e. laws of intestate succession: (Section 43-8-41; and 43-8-42)

  • No surviving spouse, but there are surviving children:
    • All of the estate goes to the surviving children split equally among them or to their children in accordance to their per stirpes share
  • Surviving spouse and
    • Children of surviving spouse:
      • first $50,000 and one-half (1/2) to the surviving spouse, and
      • $50,000 and the other one-half (1/2), split equally among the surviving children
      • Children not of the surviving spouse (for example your children from a previous marriage):
        • one-half (1/2) to surviving spouse, and
        • the other one-half (1/2), split equally among the surviving children
        • No children, but at least one of your parents survives you:
          • first $100,000 and one-half (1/2) to surviving spouse, and
          •  the other one-half (1/2), split equally among the surviving parents
        • No children and both of your parents of deceased:
          • All of your estate will pass to your spouse
  • At least one parent survives you, but no surviving spouse or children:
    • All of your estate will pass to your surviving parents equally
  • No spouse, children, or parents:
    • Siblings (brothers and sisters) according to their per stirpes share. If none, then to grandparents or the children of your siblings according to their per stirpes share. If none, then to your spouse’s next of kin

Who must be named as a beneficiary in your will:

  • Surviving spouse (Section 43-8-90), andChildren, born or adopted (Section 43-8-91)
    • Surviving spouse must be given either:
      • All of your estate minus the value of the surviving spouse’s “augmented estate. Augmented estate refers to all property in your will as well as other legal documents that pass property such as a living trust or joint tenancy. (Section 43-8-70), or
      • One-third (1/3) of your (not the surviving spouse’s augmented estate, but yours) “augmented” estate. Augmented estate refers to all property in your will as well as other legal documents that pass property such as a living trust or joint tenancy. (Section 43-8-70)
  • Children, born or adopted (Section 43-8-91)

Effects of changes in your marital status on your will:

  • You are divorced from the surviving spouse:
    • Revokes will as to divorced surviving spouse, unless will expressly provides for divorced surviving spouse (Section 43-8-137, and 43-8-252)
  • You get married without changing your will that does not provide for your new spouse:
    • Revokes will as to spouse, unless will expressly provides for spouse, but surviving spouse may still be entitled to shares under state intestate law (Section 43-8-90)

Out of state executors: Allowed only if already serving as executor of the same estate in another state (Section 43-2-22)

Witnesses:

  • Minimum number of witnesses required: Two, each of whom witnessed either the signing or the testator's acknowledgment of the signature or of the will (Section 43-8-131)
  • Are witnesses allowed to be beneficiaries?: Yes (Section 43-8-134)
  • Requirements to be a witness, witnesses must:
    • be at least 19 years of age,
    • not be related to you by blood, adoption, or marriage, and
    • not be finically responsible for your healthcare

Property ownership (Section 35-4-7):

  • Common law state
  • Jointly held real estate is presumed to be held as tenancy in common, unless title expressly and clearly creates a joint tenancy with right of survivorship
  • Bank account deposits held jointly are payable to any survivor named in the bank account
  • Tenancy by the entirety is not recognized in this state

Other types of wills:

  • Self-proving wills recognized: Yes, recognized (Section 43-8-132)
  • Living will requires diagnoses and medical records documenting your terminal illness (or injury), or your permanent state of unconsciousness, from two physicians, one of which must be your attending physician (Section 22-8A-4)
  • Durable Power of Attorney: Durable Power of Attorney Act (Section 26-1-2)