What It Means to Pass Without a Last Will and Testament in Alabama

A Last Will and Testament (“LWT”) is a way to not only protect your assets, but also establish to whom your property is assign upon your death.  Despite this being a vital document in your estate plan, many people never execute a LWT.  While Davis, Davis & Associates, P.C. recommends having all estate planning documents prepared and fully executed, we understand that this is not always the case; if you or a loved one fall into this category, there is no need to worry about what happens to your assets when you pass.  Under Alabama’s intestate succession laws, if you pass without a LWT, your assets transfer to your closest relatives.  

Like many things law, intestate succession can seem pretty complicated; the most basic description is that under intestate succession, who gets what depends on which of your relatives are living.  Here’s the breakdown:

You die with a spouse but no children. Your spouse inherit everything.
You die with children but no spouse. Your children inherit everything.
You die with parents but no children or spouse. Your parents inherit everything.
You die with siblings but no children, parents, or spouse. Your siblings inherit everything in equal shares.
You die with a spouse and children that belong to you and your spouse (biological or adopted). Your spouse inherits the first $50,000 of your estate, plus half of the balance of your estate.  After that, your children inherit the remaining balance of your estate.
You die with a spouse and children that are not your spouse’s children (biological or adopted). Your spouse inherits half of your estate, leaving your children with the other half.
You die with a spouse and parents. Your spouse inherits the first $100,000 of your estate, plus half of the balance of your estate, leaving your parents to inherit the other half of the intestate property balance.
You die with no living relatives. Your entire estate will escheat to the State of Alabama.

Because intestate succession is only affected by assets that pass through probate, even if you pass without a LWT, there are parts of your estate that won’t be affected.  For example, passing with or without a LWT would not impact any of the following:

  • Living Trust Property
  • Life Insurance Proceeds or Retirement Accounts with a Named Beneficiary
  • Trust Assets
  • Property in Life Estates
  • Any Property in Which You Are a Joint Tenant

End of life plans can often intimidate some, leading many to completely ignoring the estate planning process.  In order to avoid the intestate succession process, schedule a consultation to discuss your estate planning options.  However, if you know someone that has passed without a LWT, give us a call to help you navigate the intestate succession process at 251-621-1555.

Will Contests: What You Need to Know

When a loved one passes away (if they have a Will), his or her estate will likely go through the court-supervised probate process where the assets of the decedent are managed and distributed. The length of time needed to complete the probate process will depend on the size and complexity of the estate and the local rules and schedule of the probate court, amongst other things.  

Unfortunately, one significant setback in the administration of an estate is an objection to a will, most commonly referred to as a “will contest”. There are many reasons why loved ones file a petition to contest a will and doing so is more common than you would think. Not only will a contest slow down the process of distributing assets and handling estate affairs, but, as you can imagine, it is often incredibly costly to litigate. 

In order to actually file a will contest, an individual must have legal “standing” to raise their objections. This can occur if children are receiving a disproportionate share under the will or when distribution plans change from a prior will to the most current will. This can also occur if there is a dispute over whomever the decedent appointed to serve as the Executor or if there are concerns about the decedent’s mental capacity when they drafted their will. 

Ultimately, in order to successfully contest a will, the protesting party must prove that the will is invalid and doing so requires proof. The following are the most common, but not the only, scenarios under which a will may be deemed invalid:

  1. Undue Influence
  2. Mental/Testamentary Incapacity
  3. Will was not properly drafted and/or executed
  4. The Will was revoked prior to decedent’s death
  5. Fraud by a third party


For more information on the probate process and/or estate litigation, call our office to set up a consultation. (251) 621-1555

I’ve Been Appointed as Executor of a Will…Now What?

Before appointing someone—or accepting an appointment, as it relates to the Executor of a Will, it’s important to know the duties and responsibilities that come with that role. As an Executor, perhaps the most important thing to know is that the process will take time and it will require good organizational skills. Essentially, as an Executor, you are responsible for seeing to it that all assets of the decedent are given to their new owners (per the Will’s terms), for representing the estate in probate court, for paying any debts of the estate and, sometimes, for handling the funeral/burial arrangements. 

Whether you, as the Executor, are a member of the immediate family or are a trusted friend or colleague, you will be working closely with a grieving family and, in most cases, there is money involved, so patience and a good temperament are also key. In order to carry out your duties as an Executor in the most efficient and stress-free manner, it’s important to consider taking some advance preparations. 

First, you’ll want to know as soon as you’re appointed, where the relevant documents are stored. These documents would of course include the Will itself, but may also include trust documents, tax records, credit card statements, banking records, funeral and/or cemetery arrangements, etc. Also, it would be in good practice to make copies of these documents for yourself and keep them in a safe location. 

Second, you may want to consider going over all of the documents, in detail, with the individual who has appointed you as Executor. Remember, once your role as Executor is “activated” you will not be able to communicate with the decedent and there may be certain terms and conditions in their estate plan that are vague or confusing. Asking any clarifying questions you may have as earlier as possible, will save you a tremendous amount of time and headache in the long run. 

Third, know who the other “players” are and keep good contact information on everyone. Not only will you want to know the beneficiaries of the Will/Trust, but you’ll want to know if there’s a specific accountant to assist with buttoning up financial matters, and of course you’ll want to know if the client has a probate attorney in mind who will guide you through the probate court process. 

For more information on estate planning and probate matters, call the firm today and speak to one of our seasoned attorneys. (251) 621-1555

“Letter of Testamentary” Explained

It’s a common misconception that some people assume if they are in possession of someone’s Will, and especially if they are the named Executor of said Will, that they can start acting immediately upon that person’s passing. This can include taking actions like removing personal property from the decedent’s home, selling vehicles or other possessions, paying bills and/or distributing property to Will beneficiaries. 

However, before taking actions it is necessary for the Executor to obtain what is called a “Letter of Testamentary”. This document can only be granted by the probate court in your jurisdiction and it specifically grants authority to the Executor to formally act on behalf of the decedent’s estate. 

To obtain these letters through the probate court, you will most likely need to start by hiring a licensed probate attorney in your area. While it is not required in Alabama that you engage an attorney for the purpose of probating a Will, most individuals find it nearly impossible to navigate the probate process without legal guidance. 

In addition to the original Last Will and Testament of the decedent, you will need a death certificate and a number of required forms the probate court will request. This is where having a licensed (and seasoned) probate attorney will provide you the most help. Once you petition the court to probate the estate and grant you Letters of Testamentary, the court will set a hearing to validate the will and assess your capacity to serve as the Executor. 

So what if your loved one passed away without a Will, but instead, had a Trust that provided for the distribution of their assets upon death? In that case, you would not need to obtain Letters of Testamentary or interact with the court at all. In fact, a Trust administration avoids the entire probate process, which is a huge advantage to establishing a trust in the first place. 

To learn more about Estate Planning and the Probate Process, call our office today and schedule your appointment. (251) 621-1555

Different Types of Bequests in a Will or Trust

When the time comes for you to get your estate plan in order, the two most important questions you’ll need to answer is (1) who are you going to appoint as your Executor (and ideally a successor Executor)? And (2) how are you going to distribute your assets? In short, the gifting of your property through a Will or Trust is known as a “bequest.” Bequests can be as original and as varied as the person creating the estate plan, but here’s a breakdown of the 6 main categories of bequests.

  • General Bequests: This type of gift describes a specific dollar amount, rather than naming a particular item of personal or real property. For example, a general bequest might read something like this, “I hereby leave the lump sum of $25,000 to my son, JOHN DOE.”


  • Specific Bequests: A specific bequest is exactly what is sounds like—the gifting of a specific item of property. For instance, one might say, “I hereby leave my 3-carat solitaire diamond ring to my daughter, JANE DOE.”


  • Residuary Bequest: Once your Executor has distributed all of your property through more specific bequest language, the “residue” is anything and everything that may be left over. This type of bequest would read like this, “I hereby leave the rest, residue and remainder of my estate to my daughter, JANE DOE and my son, JOHN DOE, in equal shares.”


  • Demonstrative Bequests: A bequest of this type would include specific instructions for how a certain asset or a specific dollar amount is to be distributed. For example, “I hereby leave my son, JOHN DOE, $100,000 to be paid from my account at Charles Schwab.”


  • Percentage Bequests: You guessed it—this bequest is exactly as it is titled. This type of bequest is better for clients who are concerned about possible fluctuations in the value of their estate and is often seen as a more “fair” way of making distributions. An example  of a percentage bequest would say “I hereby bequeath 10% of my estate to my daughter, JANE DOE.”


  • Contingent Bequests: This type of gift is only fulfilled when certain conditions have been met. For instance, one might say, “I hereby leave $25,000 to my daughter, JANE DOE, once she graduates from an accredited university.”


By using different types of bequests in your Will or Trust, you can carefully craft how you’d like to distribute all of the property that makes up your estate. Call Davis, Davis & Associates today to set up your Estate Planning Consultation. (251) 621-1555