Estate Law FAQs

A Will is a legal document that says how your property should be distributed after your death, who your Executor will be, and who should be Guardian of your minor children. A Will can also establish trusts. If someone dies with a will, they are said to have died testate. If they die without a will, they have died intestate.

Generally, the answer is yes. You can omit children and other family members. However, you cannot completely omit your spouse. Under Alabama law, omitted spouses are entitled to an “elective share” which usually equals one-third of the Estate.

A will must meet certain requirements set by the state to be considered valid. In Alabama, the will must be written, signed by the maker, and witnessed by two people in the manner required by law.

In Alabama, the Testator of a Will must be at least 18 years old, of sound mind, and free from improper influences by other people.

A properly written and executed will is valid indefinitely or until it is changed or revoked. In other words, there is no express expiration date. However, your will should be updated after life events such as after births, deaths, divorces, etc. and should be periodically reviewed as laws and the tax code periodically change.

It’s best to write a will when you are in good health and have a clear intent on how to dispose of your property. However, as long as a person has testamentary capacity, are at least 18, and are free of undue influence, they can make a will.

Will packages at Pylant Estate Law generally cost between $450 and $750 and include a Last Will and Testament, Power of Attorney, Healthcare Power of Attorney, and Advanced Directive for Healthcare. Living Trust packages start at $1,500.

Estate planning is the process of preparing legal documents that outline your wishes for your assets and your loved ones in the event of your death or incapacity. It is important in Alabama because it can help ensure that your property is distributed according to your wishes, your loved ones are taken care of, and your assets are protected from unnecessary taxes and fees.

Your estate plan should include a will, a power of attorney, a living will, and possibly a trust, depending on your individual circumstances. At Pylant Estate Law, we typically also provide a Healthcare Power of Attorney, which authorizes your agent to make healthcare decisions for you.

The intent of a living trust is to avoid probate. However, even if you execute a living trust, you should also have a Will that “pours over” to your trust in case certain assets (such as a forgotten bank account, vehicle, etc.) aren’t re-titled in the name of the trust during lifetime.

You should review and update your estate plan at least every five years or whenever there are major changes in your life, such as a marriage, divorce, birth of a child, or death of a loved one.

Fortunately, there is no estate tax in Alabama! There is a federal estate tax; however, the exemption amount is very high. For 2023, the gift and estate tax exemption is $12.92 million ($25.84 million per married couple). So provided that your estate is under the exemption, your estate will not be subject to estate tax in Alabama.
Can I disinherit someone from my estate in Alabama?
You can disinherit anyone except for your spouse in Alabama; a spouse has an elective share in Alabama. See Ala. Code § 43-8-70.

If you have minor children, it’s highly advisable to name a guardian for your children in your will and leave property to them in the form of a trust in your will (not outright). If property is left outright to minors, or if it passes according to the statute of intestacy because you did not have a will, the court must appoint a conservator to manage the funds.

You should choose someone who is trustworthy and capable of handling the responsibilities of managing your estate. Typically, this job is handled by family members. However, in certain situations, having a professional such as a trust company, bank, attorney, CPA, etc. is advisable. It is also important to name an alternate executor or trustee in case your first choice is unable or unwilling to serve.

If you die without an estate plan in Alabama, your property will be distributed according to the Alabama Statute of Intestacy, which may not align with your wishes. See Ala. Code § 43-8-40.

You can protect your assets from creditors or lawsuits by setting up an asset protection trust, creating a limited liability company, or using other asset protection strategies.

A power of attorney is a legal document that gives someone else the authority to make decisions on your behalf such as writing checks, selling property, opening accounts, managing affairs, etc. A living will outlines your wishes for end-of-life care in the event you are terminally ill or permanently unconscious (comatose).

A trust is a legal entity that holds and manages assets for the benefit of a designated beneficiary. The benefits of creating a trust include added asset protection, flexibility, and the ability to avoid probate.

Yes, you can use your estate plan to make charitable donations in Alabama. This can be done through a charitable trust, a bequest in your will, or other means. There are also estate tax advantages to making charitable donations.

Probate is the legal process by which a deceased person's assets are distributed according to their will or the Alabama statute of intestacy. If someone dies with property solely in their name, then probate (or summary distribution of a small estate) is required.

The probate period in Alabama takes at least six months. Creditors are entitled to six months to file claims against the estate. The probate process can take longer if there are creditor claims against the estate, disputes between heirs, if the estate is selling real estate, or a number of other reasons. A summary distribution of a small estate takes less time but the total value of the estate must be less than $34,611.00 for 2023 and cannot have real estate.

Typically, the executor files a will for probate. If there is no will, Ala. Code § 43-2-42 provides a list of priorities for who is appointed as Personal Representative:

1. The husband or widow.
2. The next of kin entitled to share in the distribution of the estate.
3. The largest creditor of the estate residing in this state.
4. Any other person as the judge of probate may appoint.

Assets that are subject to probate in Alabama include any property solely owned by the deceased person and any assets that do not pass automatically to a designated beneficiary (such as with a joint survivorship deed or payable on death “POD” bank account).

Administrative debts (such as for legal and accounting fees) and upkeep fees (such as insurance and utilities) are typically paid during the six month probate period. Claims against the estate are to be paid in the following priority in accordance with Ala. Code 43-2-371:

1. The funeral expenses.
2. The fees and charges of administration.
3. Expenses of the last sickness.
4. Taxes assessed on the estate of the decedent previous to his death.
5. Debts due to employees, as such, for services rendered the year of the death of the decedent.
6. The other debts of the decedent.

If you pass away without a Will, you are considered to have died intestate. In Alabama, the Statute of Intestacy generally can be summarized as follows:

Property going to the surviving spouse:

• The entire estate goes to the surviving spouse if there are no surviving issue (descendants) or parents of the deceased.
• The first $100,000, plus half of the balance of the estate, goes to the surviving spouse if there is no surviving issue but there are surviving parent(s).
• The first $50,000, plus half of the balance of the estate, goes to the surviving spouse if there are surviving issue all of whom are also issue of the surviving spouse.
• Half of the estate goes to the surviving spouse if there are surviving issue who are not issue of the surviving spouse.

Property not going to surviving spouse:
If there is no surviving spouse, the order of priority is as follows:

1. Issue (lineal descendants)
2. Parents
3. Brothers and sisters
4. Grandparents
5. Aunts and uncles
6. Cousins

Probate can be avoided in Alabama by setting up a living trust, naming beneficiaries on accounts and assets, and using other estate planning strategies.

The executor is responsible for managing the deceased person's estate during probate in Alabama. This includes filing court documents, paying debts and taxes, and distributing assets according to the will or state law.

Disputes during probate in Alabama can be handled through mediation, negotiation, or by legal action in probate or circuit court.

At Pylant Estate Law, our probate legal fees start at $2,500 for probating simple estates.

An estate can be reopened after probate in Alabama if new assets are discovered or in certain other limited circumstances.

A Will may be probated within five years from the date of the Testator’s death.

Yes, an heir or beneficiary can file a will contest within the statute of limitations, or upon sufficient grounds, seek the removal of a Personal Representative, seek an accounting, seek to enforce a Personal Representative to take certain action, or a number of different motions depending on the facts of the case.

An executor can be removed for various reasons as provided in Ala. Code 43-2-290 which provides for removal of a Personal Representative as follows:

1. Imbecility of mind; intemperance; continued sickness, rendering him incapable of the discharge of his duties; or when from his conduct or character there is reason to believe that he is not a suitable person to have the charge and control of the estate.
2. Failure to make and return inventories or accounts of sale; failure to make settlements as required by law; or the failure to do any act as such executor or administrator, when lawfully required by the judge of probate.
3. The wasting, embezzlement or any other maladministration of the estate.
4. The using of any of the funds of the estate for his own benefit.
5. A sentence of imprisonment in the penitentiary, county jail or for hard labor for the county for a term of 12 months or more.

Estate litigation is an umbrella term for various disputes including will contests, wrongdoing by a Personal Representative, breach of fiduciary duty, division of assets, interpretation of documents, accountings, spousal rights, undue influence, and more.

Common reasons for estate litigation in Alabama include disputes over the validity of a will, challenges to the appointment of an executor or administrator, disputes over the distribution of assets, and allegations of wrongdoing.

Anyone with standing, which typically includes beneficiaries, heirs, creditors, and interested parties, can file an estate litigation lawsuit.

An estate litigation attorney in Alabama can represent clients in disputes over the administration or distribution of a deceased person's estate. They can provide legal advice, negotiate settlements, and represent clients in court.

Yes, a will can be contested in Alabama if there is evidence of fraud, undue influence, lack of capacity, or if the will does not meet statutory formalities.

If a will is declared invalid in Alabama, the deceased person's assets will be distributed according to the Alabama statute of intestacy.

An executor can be removed for various reasons as provided in Ala. Code 43-2-290 which provides for removal of a Personal Representative as follows:

1. Imbecility of mind; intemperance; continued sickness, rendering him incapable of the discharge of his duties; or when from his conduct or character there is reason to believe that he is not a suitable person to have the charge and control of the estate.
2. Failure to make and return inventories or accounts of sale; failure to make settlements as required by law; or the failure to do any act as such executor or administrator, when lawfully required by the judge of probate.
3. The wasting, embezzlement or any other maladministration of the estate.
4. The using of any of the funds of the estate for his own benefit.
5. A sentence of imprisonment in the penitentiary, county jail or for hard labor for the county for a term of 12 months or more.

Often, the process involves obtaining an appraisal and accounting. The probate judge (or circuit judge if the case has been removed to circuit court) can rule on issues of interpreting a Will. The parties can negotiate privately, enter formal mediation, or litigate in court.

Disputes over real estate in estate litigation in Alabama can be handled through mediation, negotiation, or in court. The court may order a sale of the property or a partition to divide the property among the parties.

Yes, estate litigation can be settled out of court in Alabama through mediation or negotiation.

The costs of estate litigation in Alabama can vary depending on the complexity of the case and the amount of time spent in court. It can include attorney fees, court costs, and other expenses associated with the litigation. At Pylant Estate Law, after an initial consultation, if we are able to take your case, we will discuss whether to proceed on an hourly or contingency fee basis.

The length of estate litigation in Alabama can vary depending on the complexity of the case and whether there are any disputes. It can take several months to several years to complete.

The potential outcomes of estate litigation in Alabama include a settlement, a judgment in favor of one party, or a dismissal of the case.

Heirship property is property owned jointly by multiple family members or relatives (sometimes distant). It often is property passed down from one generation to the next such as farm or timber land.

The Alabama Uniform Partition of Heirs Property Act (UPHPA) is a law that provides a specific way that heirship property is divided and/or sold with the goal of fairness to all parties. See Ala. Code § 35-6A-1. This process is often referred to as sale for division.

Sale for division is a legal process in Alabama that allows co-owners of heirship property to sell the property and divide the proceeds among themselves.

Any co-owner of heirship property can initiate a sale for division in Alabama.

For heirship property governed by the Alabama Uniform Partition of Heirs Property Act, generally the process takes the following steps:

1. File an action in court to start the process
2. Service on all co-owners and the co-owners file an answer in court
3. The property is appraised
4. The court sets the value of the property
5. The co-owners who did not want to sell get a chance to purchase the property for the appraised value
6. If the co-owners do not purchase the property, the property is sold to pay all of the owners their share in cash

Typically, the property is appraised. If the cost of appraisal outweighs the benefits, the court can hold a hearing to determine the value.

Yes, for heir property in Alabama, a co-owner gets a chance to purchase the interests of the co-owners requesting the sale for division.

The proceeds from the sale for division in Alabama are distributed among the co-owners according to their ownership interests.

Partitioning of property is a legal process that allows property to be subdivided without selling it. It typically only is successful when a large tract of property can be easily divided.

The length of the sale for division process in Alabama can vary depending on the complexity of the case and whether there are any disputes. It can take several months to complete.