What Happens if You Die without a Will?

The Alabama Code sets out guidelines that that Probate Court must follow when someone dies without a Will. Those guidelines list who gets the estate, or the property a person owns at the time of their death. In most cases the spouse of the deceased gets at least half of the estate. In cases where there is no surviving spouse then the estate usually passes through to the children and then parents of the deceased.

Even though there is probably little fear that the State will take your property if you die without a Will, it is better to have a Will so your wishes can be carried out. This is especially true in blended families where parents have remarried and there are children and step-children to provide for. If you die without a Will administering your estate things may also be more complicated and expensive because Probate Court will require you to provide a bond and file an inventory which are requirements that are usually waived in a Will.

When writing a Will, it is best to have the help of an attorney because certain formalities have to be followed. If your Will is not worded properly, or if it is not witnessed and notarized according to the letter of the law, it could be deemed invalid. The Will forms that you can find on the internet may not always address your individual concerns and may not contain the appropriate language. You can make an already difficult time for your loved ones a little easier by making sure that your last wishes are spelled out in a Will.

Advantages of Having a Will

A Will is a legal document that is written to ensure that upon your death, your assets are given to the heirs that you specify. Without a Will, your estate will be distributed according to state law.

Probate is the process by which your financial affairs are wound up and your assets are distributed to your heirs. This administration will be required whether you die with or without a Will, and your executor will be the person who oversees the process. As part of the probate administration, your executor will gather your assets, pay any of your creditors, determine your rightful beneficiaries or heirs, and distribute any remaining assets to the proper persons.

Clearly, the primary function of a Will is to leave instructions on how to distribute your property after your death. A lesser known function of a Will is to appoint the executor who will carry out your wishes. It is while appointing this executor that you have an opportunity to save your heirs significant amounts of money in legal fees.

Because the powers granted to an independent executor are very broad, it is imperative that you have the highest level of confidence in the diligence and integrity of the executor you appoint. There have been cases where a poor choice for executor has led to disastrous results. Thus, an independent executor should be chosen carefully and should be someone in whom you have complete trust.

Before rushing out to buy a will kit that features a “personal representative” and an attached notarized affidavit, please realize that the language in many will kits does not substantially comply with the Alabama requirements.

Also, a will must also be executed with certain formalities in order to be considered valid under the Alabama Probate Code. The instructions in the kits are not always clear, resulting in the use of the wrong form or incorrect completion of the document. This could lead to the execution of a defective Will, forcing both your estate and your beneficiaries to pay money to attorneys to litigate the correct meaning and validity of your Will. This amount will easily surpass any amount you would have paid to have a will correctly drafted in the first place.

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In conclusion, probate in Alabama is not difficult if you have an up-to-date Will with an independent executor. By having a skilled attorney draft such a will today, you may save your family great expense and hours of worry at a time when they can least afford it.


Contact or call Tim Fleming Law Firm at 251-304-0888 and have your Will properly prepared and save your family and loved ones the expense of Probate Court.