General Questions About Wills
Probate Of Wills
Administration Of An Intestate Estate
What Are The Powers And Duties Of A Personal Representative?
Guardians And Conservatorships
General Questions About Wills
What is a Will?
A Will is a document that provides the manner in which a person’s
property will be distributed when he dies. A person who dies after
writing a Will is said to have died testate.
Who may make a Will?
In Alabama, the maker of a Will must be: (1) be at least 18 years
old; (2) of sound mind; and (3) free from improper influences by
other people.
How do I make a Will?
A Will must meet certain requirements set by the State to be
considered valid. The Will must be written, signed by the maker, and
witnessed by two (2) people in the manner required by the law.
May I dispose of my property in any way I desire by making a Will?
Almost, but not quite. There are some limitations set by law to
avoid placing hardships on the people who survive the deceased. For
example, a married person cannot completely exclude the other spouse
from sharing in the estate. A lawyer can best explain all of the
limitations.
How do I know if I need to write a will?
Any amount of property which you own constitutes your estate.
Generally, the size of your estate and your family circumstances
determine whether you need a Will. An estate does not have to be any
particular size to justify a Will. If you have young children, or
property which you would like to assure will be given to certain
people, then you should consider writing a Will.
When do I need to write a will?
A Will should be written while the maker is in good health and free
from any emotional distress. A prudent person does not wait for a
catastrophe or other compelling reason to make a decision.
Who may draft a will?
There is no requirement that a person consult a lawyer before
drafting their own will. However, the proper drafting of a Will can
be a delicate operation, and it is best to consult someone who has
experience. A lawyer can make sure that your Will is legal, and that
your property will be given to the people that you intended. A
lawyer can also help construct a Will so that your family saves
money in administering the estate, and reduces their taxes.
Is a Will expensive?
A lawyer will usually charge for a Will according to the time spent
in preparing the Will. If you have a small estate and a simple plan
for distributing your property, then your Will should cost less than
one for a large, complex estate with several people receiving
property.
MAY A WILL BE CHANGED ONCE IT IS WRITTEN?
A person may change his Will as often as he desires. However, the
changes must meet the same requirements listed above for the
original Will. No change should be made without first consulting the
person who drafted the Will.
How long is my will “good”?
A properly written and executed Will is “good” until it is changed
or revoked. Writing a second Will usually revokes the first Will.
However, if there is a change in your estate or your family makeup,
you may consider changing your existing Will or writing a new Will.
For example, if you sell your house you may need to change your Will
to reflect the change in your estate.
What should I do with my Will once it is written?
Once you have written your Will, you should keep it in a safe place,
such as a safety deposit box at a bank. You should also let your
family know where the Will is so that they can find it when you die.
Probate of Wills
What does Probate of a Will mean?
Probate of a Will is the administration of an estate to insure that
all of the property is disposed of properly. It is the Probate
Judge’s responsibility to make sure that all of the laws in Alabama
regarding the distribution of estates are followed.
Who should Probate a Will?
Upon the person’s death, anyone named in the Will either as personal
representative or as a recipient of property, or any other person
with a financial interest in the estate, or the person who has
possession of the Will may have the Will proved before the proper
Probate Court. 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 required to produce it.
Where should a Will be probated?
Generally, Wills must be filed for probate in the county where the
deceased lived.
When must a Will be filed for probate?
To be effective, a Will must be filed for probate within five years
of the date of the testator’s death.
Do I have to have a lawyer?
The complexity of handling estates normally necessitate having an
attorney since the Probate Judge cannot advise you of the law or
provide you with forms.
Do I need to Probate the Will?
Yes, the Will must be probated to have legal effect. Before deciding
not to probate a Will one should consult an attorney.
Administration of an Intestate Estate
What happens to my property if I do not write a will?
If someone dies without writing a Will, they have died intestate.
Each state has specific laws governing the distribution of property
when a person dies intestate, and most laws are generally the same.
The laws of Alabama are shown below, but you should remember that
these laws may not apply if the deceased was not a resident of
Alabama, or if the property is located in another state. In this
list, “issue” means all of the people who have descended from the
decedent. This includes children (both natural and adopted),
grandchildren (both natural and adopted), great grandchildren, and
so on.
- Property going to the surviving spouse:
- entire estate if no surviving issue or parents of
decedent; - first $100,000, plus ½ of balance of estate if
there is no surviving issue but there is surviving parent(s); - first $50,000, plus ½ of balance of estate if there
are surviving issue all of whom are also issue of surviving
spouse; or - ½ of estate if there are surviving issue who are
not issue of the surviving spouse.
- entire estate if no surviving issue or parents of
- Property not going to surviving spouse:
If there is no surviving spouse, or there is property left after
the spouse receives his or her share, it passes under the
following priority: All of the property passes to the issue,
unless there are none. If none, all passes to the parents. If
neither parent is living, the estate passes to siblings, and so on
under this priority:- issue
- parents
- brothers and sisters
- grandparents
- aunts and uncles
- cousins
Steps in Probate of an Estate:
- File petition
- Take immediate control of the estate
- Inventory of the estate within 2 months
- Bond
- Notice must be given to all heirs
- Letters of Testamentary granted
- Notice to file claims must be published and individual notice
given to anyone known to have a claim against the deceased - Claims must be filed generally within 6 months
- Generally the estate cannot be divided until all claims and
expenses have been paid which is at least six months - Court must approve administrator’s fees
What are the powers and duties of a personal representative?
- Without court authorization the personal representative may:
- retain assets
- receive assets
- perform deceased contracts
- satisfy written charitable pledges
- deposit funds in financial institutions
- abandon valueless personal property
- allocate expenses to income
- pay assessments
- hold securities
- insure assets
- borrow to protect estate
- settle with debtors
- settle claims
- pay taxes and expenses
- sell or exercise stock options
- enter leases up to one year
- vote stocks
- employ attorney, auditors
- prosecute or defend claims,
- continue unincorporated business
- incorporate the business
- limit liability
(Court may limit powers of personal representative)
- With prior court authorization the personal representative
may:- abandon an estate asset
- make repairs or demolish improvements
- subdivide, dedicate land
- leases greater than on year
- enter mineral leases
- sell real estate
- pay compensation of person representatives
Guardians and Conservatorships
What is a Conservator and a Ward?
A conservator is a person who is appointed by the court to manage
the property of a minor or incapacitated person. A ward is the legal
name for a person for whom a guardian has been appointed.
Who is an incapacitated person?
A person who is unable to manage property and business affairs
because of: mental illness, mental deficiency, physical illness,
infirmities accompanying confinement, detention by foreign power or
disappearance.
When can a conservator be appointed?
A conservator may be appointed when an incapacitated person is
unable to manage property and business affairs, and (a) has property
that will be wasted without proper management or (b) funds are
needed to support the incapacitated person or one entitled to
support from the incapacitated person.
What is the difference between a guardian and a conservator?
The guardian looks after the person and their welfare while a
conservator look after their estate.
What is a guardian?
The parent of a minor or someone who has been appointed by the court
to be responsible for the personal care of an individual.
Can a parent or spouse appoint a guardian?
Yes, in a Will a parent may appoint a guardian for a minor child or
for an unmarried incapacitated child. A person may appoint a
guardian for his or her incapacitated spouse in a Will.
Involuntary Commitment
What is an involuntary commitment?
A procedure whereby a person is involuntarily placed in the custody
of the State Department of Mental Health for treatment.
What procedure is used to initiate an involuntary commitment?
Any person may seek to have another person committed by filing a
petition with the Probate Court. The petition must contain the
following:
- name and address of the petitioner; and
- name and location of defendant’s spouse, attorney or
next of kin; and - that petitioner has reason to believe defendant is
mentally ill; and - petitioner’s beliefs are based on specific behavior,
acts, attempts or threats which are described in detail; and - names and addresses of the other people with
knowledge of the defendant’s illness or who observed the person’s
overt acts and who may be called as his witnesses.
Must there be a hearing?
Yes, a hearing is to be held by Probate Judge without a jury and it
is open to the public unless requested otherwise by the defendant.
Commitment is granted only if the elements required are established
by clear, unequivocal and convincing evidence.
What are the results for the hearing?
If commitment is granted, the order shall be entered for outpatient
or inpatient treatment. The least restrictive alternative necessary
and available for the treatment of the defendant’s mental illness
shall be ordered. Inpatient treatment may be ordered at a state or a
designated mental health facility. Outpatient treatment may be
ordered at a designated mental health facility if said facility if
said facility consents to treat the defendant on an outpatient
basis.
Adoption
What is an adoption?
Adoption is the legal procedure through which a minor is recognized
by law as being the son or daughter of the adopting adult(s) and as
having all of the rights and duties of such relationship including
the right of inheritance. The adoptee takes the name designated by
the petitioner.
Who may adopt?
Any person who is 19 or older. The Adoption Code specifically
prohibits discrimination in granting adoptions on the basis of
marital status or age.
Who can be adopted?
A minor, defined as being a person under the age of nineteen.
What steps are usually involved in an adoption?
- Preplacement investigation.
- All necessary consents and/or relinquishments
concerning the adoption are obtained. - Guardian ad litem is appointed when either natural
parent of the adoptee is a minor or in case of a contested
hearing. - Petition court for authority to pay fees or expenses.
- Placement of child with petitioners.
- File petition for adoption 30 days after placement.
- Serve notice or obtain waiver of notice on or from
all parties entitled to notice of the adoption. - Post placement investigation.
- Hearings.
- Affidavits of non-payment.
- Accounting of disbursements.
What is a pre-placement investigation?
It is an investigation conducted for the purpose of determining the
suitability of each petitioner and the home in which the adoptee
will be placed. The investigation will include a criminal background
search and will focus on any other circumstances relevant to the
placement of the adoptee.
Is it always necessary to have a pre-placement investigation?
Yes, unless the persons seeking to adopt is a close relative of the
adoptee as listed in 26-10A-27; 26-10A-28 of the Code of Alabama.
Whose consent to the adoption is required?
- The adoptee, if 14 years or older unless mentally
incapable of giving consent. - The adoptee’s mother.
- The adoptee’s presumed father if he meets the
requirements set out in 26-10A-7(c) of the Code of Alabama. - The agency to whom the adoptee has been relinquished
or which holds permanent custody except that a court may grant an
adoption without the agency’s consent when it would be in the
child’s best interest and the agency’s withholding of consent is
unreasonable. - The putative father if known; provided that he
responds within 30 days after receiving notice of the adoption.
Can a minor consent to the adoption of his or her child?
Yes, however prior to such consent the court must appoint the minor
parent a guardian ad litem to represent the minor’s interests. A
minor who is 14 years of age or older can nominate a guardian ad
litem to protect his or her interests.
Can a person revoke a consent to adoption executed by him or her due to the fact that at the time consent was given that person was a minor?
No, a consent or relinquishment executed by a parent who is a minor
shall not be subject to revocation by reason of such minority.
When, where and in what form must a consent or relinquishment for adoption be given?
A consent or relinquishment for adoption may be given at any time.
The prebirth consent of the mother must be signed or confirmed
before a probate judge. All other prebirth or post-birth consent or
relinquishments must be signed or confirmed before the Probate Judge
or clerk of the Probate Court, or someone appointed by that court to
do such, a person appointed by the agency conducting the
investigation or a notary public. The consent or relinquishment must
be in substantially the same form as provided in the adoption code
and must be in writing and signed by the person consenting or
relinquishing.
When may a consent or relinquishment be withdrawn?
A consent or relinquishment may be withdrawn for any reason five
days after the birth of the adoptee or five days after the signing
of the consent or relinquishment whichever occurs later. The time to
withdraw the consent or relinquishment can be expanded to 14 days if
the court finds that such a delay is reasonable under the
circumstances and is in the best interest of the child.
Where is a petition for adoption filed?
A petition for adoption may be filed in the probate court of any of
the following counties: where the minor resides; where the
petitioner resides or is in military service, or where the office of
the agency or institution having guardianship or custody of the
minor is located.
When is a petition for adoption filed?
The adoption petition must be filed within 30 days after the minor
is placed with the prospective adoption parent(s) for adoption. If
the person seeking the adoption is a stepparent or relative of the
adoptee then the adoptee must reside with the petitioner for al year
before such petition is filed. If the child has not lived with the
stepparent of relative for a year, the adoption will proceed in the
same manner as all other adoptions unless the court waives the
residence requirement.
Can I pay the parent of a minor or unborn child for the child?
No! An offer to make such payment is a Class A misdemeanor, to
receive payment for a person’s consent to adoption is a class C
felony.
What expenses can I pay?
A person seeking to adopt a child may pay maternity connected
medical or hospital and necessary living expenses of the mother
preceding birth and during pregnancy and during pregnancy related
incapacity as long as such payments are made as an act of charity
and such payment is not contingent upon placement of the child for
adoption. All fees and expenses, including legal, medical,
investigative, or other legitimate professional fees may only be
paid with court approval.
How confidential is an adoption?
The adoption code was designed to keep an adoption as confidential
as possible.
- Before a final adoption decree is rendered the only
people with access to the adoption records are: the petitioner,
the petitioner’s attorney; the preplacement investigator, and any
attorney appointed or retained by the minor being adopted. No
other person has access to the adoption records unless they obtain
a court order after showing good cause to allow then to inspect
records. - All adoption hearings are confidential and held in
closed court open only to the interested parties and their
counsel, except with leave of the court. - After the final decree of adoption is entered all
documents pertaining to the adoption are sealed and identifying
information cannot be obtained by anyone except the adoptee under
limited circumstances. (see below). - The natural parent(s) may consent in writing under
oath to disclosure of identifying information to the adoptee when
such adoptee reaches the age of 19. The adoptee upon reaching the
age of 19 may petition the court for disclosure of identifying
information. Such information will not be released to the adoptee
without the natural parent consent unless the court determines it
is best after weighting the interests of the parties involved.
What is the difference between an adoption by a stepparent or a close family member and other adoptions?
There is usually a lot less formality and requirements when the
adoptee is being adopted by a stepparent or close family member.
Unlike all other adoptions, usually no preplacement or
postplacement investigation nor accounting of the cost relating to
the adoption are required.
In order to be exempt from these requirements, the adoptee must
have lived with the petitioner for at least one year.
Can grandparents obtain visitation rights to see the adoptee after the adoption?
Ordinarily the grandparents have no visitation rights with their
grandchildren when the natural parents’ rights have been terminated
by adoption. However, at the court’s discretion the court may allow
such visitation rights if the child is adopted by a close relative
or a stepparent provided it is in the child’s best interests.
Deeds and Records
Maintaining Records
The Probate Judge is required to preserve all documents, files,
papers, and orders, together with all attachments required by law to
be recorded and filed in his office. These records must be kept in a
manner to permit convenient reference.
Instruments to be Recorded
Probate Judges must keep large and well-bound books for recording,
work for work, deeds and mortgages and all other instruments
authorized to be recorded.
The following records when executed in accordance with law shall
be admitted to record in the office of the Probate Judge: (1) Plats
or maps; (2) Judgments and liens; (3) Deeds, mortgages, deeds of
trust, bills of sale, contracts or other documents purporting to
convey any right, title, easement, or interest in any real estate or
personal property, all assignments of mortgages; (4) Petitions,
decrees, or orders of bankruptcy; (5) Corporations and other forms
of business organizations; (6) Lis pendens; (7) Marriage license and
military discharges; (8) Documents and instruments concerning
condominiums; (9) Mortgages on personal property.
