Estate Planning FAQs
Below are answers to questions frequently encountered by the Dothan estate planning attorneys at Smith & McGhee as they draft wills, trusts and advance directives, and represent parties in probate litigation throughout southeastern Alabama. If you have other questions, or if you need legal help with an estate planning or probate matter, call Smith & McGhee at 334-702-1744.
What is required to make a valid will in Alabama?
Any person who is at least 18 years old and of “sound mind” is competent to make a will in Alabama. This person is known as the “testator.” Being of sound mind basically means that you understand you are making a will and what that means, and you understand your estate and what you are giving away and to whom.
In order to be valid, a will must be in writing (handwritten, printed or typed) and signed by the testator in the presence of two competent witnesses, who also sign the will in the presence of the testator and each other. If the testator cannot sign the document, he or she can direct someone else (not a witness) to sign on the testator’s behalf. If the witnesses are not present for the testator’s signature, they can sign in the presence of the testator who declares the signature to be valid.
A will that is properly notarized is considered to be “self-proving,” meaning the court will enter it into probate without requiring additional evidence. If the will is not notarized, witnesses may need to be called into court to testify about the authenticity of the signatures.
What are the most common grounds for will contests?
Common challenges include a lack of intent on the part of the testator to make a will. This can be a challenge to the testator’s mental capacity, claiming the testator did not understand the decisions he or she was making. It can also be a claim that the testator was the victim of fraud, duress or undue influence, often by a family member or caregiver who put pressure on the testator to draft the will a certain way. Other challenges include alleged violations of the statute of wills, claiming the procedures described above in the preceding FAQ were not followed. Attempts to amend or revoke a will, or the existence of multiple wills, are also frequent sources of complex probate litigation.
What are the requirements for a valid revocable living trust?
The rules for creating a valid trust can be complex, but the general rules that follow will cover most instances. First, you need a written trust document that names a person or institution to serve as trustee and provides duties for the trustee. The trust document must also name the beneficiary or beneficiaries of the trust. They must either be definitely named or reasonably ascertainable. If you only have one person serving both as the sole trustee and the sole beneficiary, then you have not created a valid trust. The trust document should be signed and notarized.
Also, a trust must be created for a legally valid purpose, and it must be funded by the transfer of assets into the trust. Once transferred, the trustee holds legal title to the trust property for the benefit of the beneficiaries, who are said to hold equitable title to the property.
How is a trust challenged?
An interested party may challenge the validity of the trust, claiming the required procedures discussed above were not followed. Like a will contest, trust contests may also focus on the maker of the trusts’ mental capacity, or allege he or she was the victim of fraud, duress or undue influence. Other types of trust litigation frequently involve allegations that the trustee mismanaged trust property or otherwise violated the fiduciary duties imposed on a trustee by law. Trust litigation may involve attempts to remove the trustee or declare the trust invalid.
If a child is born after the will was already made and is not mentioned in the will, can that child inherit anything?
Alabama law provides that such a child is entitled to a share of the estate equal to what the child would receive under Alabama intestacy law if the testator had died without making a will. This is to prevent a child from being accidentally omitted from the will. This rule will apply unless one of the following can be proven in court:
- the omission was intentional
- the testator provided for the child outside of the will and intended such support to be in lieu of any inheritance
- the testator had one or more children at the time the will was executed and left substantially all of his or her estate to the other parent of the omitted child.
If you wish to intentionally disinherit a child who is living at the time you make a will, or who may be born later, this intention should be expressly stated in the will. Expect that the omitted child may challenge the will if the way it is drafted leaves open any grounds for a contest.