Wills: Alabama

Resource ID: w-013-9971

Wills: Alabama

WINSTON BUSBY, SIROTE & PERMUTT, PC, WITH PRACTICAL LAW TRUSTS & ESTATES

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A Q&A guide to the law of wills in Alabama. WHO CAN CREATE A WILL This Q&A addresses state laws and customs 2. Is there a minimum age requirement to create a will? that impact wills, including the key statutes A person must be at least 18 years of age to make a valid will in and rules related to wills, the rules of Alabama (Ala. Code § 43-8-130). intestacy, the requirements for creating a 3. What is the standard of mental capacity required to create valid will, common will provisions, information a will? concerning fiduciaries, and information A person must be of sound mind to make a valid will in Alabama regarding making changes to wills after (Ala. Code § 43-8-130). To execute a valid will, a testator must: execution, special circumstances regarding Understand the business and consequences of making a will. gifts made under a will or gift recipients, and Remember: lost wills. zzthe property to be devised; zzthe persons who are the natural objects of her bounty; and zzhow the disposition of the property is to occur. (Barnes v. Willis, 497 So.2d 90, 91 (Ala. 1986).) KEY STATUTES AND RULES Alabama law presumes that every adult has the capacity to make a 1. What are the key statutes and rules that govern wills in will. A person who contests a will has the burden to prove that the your state? testator lacked testamentary capacity (Sessions v. Handley, 470 So. 2d 1164, 1167 (Ala. 1985)). The rules and laws governing wills and probate proceedings in Alabama are found in: 4. Can an agent under a power of attorney create a will on Title 43, Chapter 8 (Probate Code) of the Code of Alabama, which behalf of a testator? sets out: zzthe laws of intestacy, which define who inherits if there is no A principal may expressly grant her agent the power to create, will; and amend, revoke, or terminate an inter vivos trust instrument under Alabama Code Section 26-1A-201(a)(1). However, Alabama does not zzthe laws applicable to wills. have a similar provision granting authority to an agent under a power (Ala. Code §§ 43-8-1 to 43-8-298.) of attorney to create a will for a principal. Title 43, Chapter 2 (Administration of Estates) of the Code of Alabama does permit a will to be signed for the testator by another Alabama, which sets out the laws and procedures of probate person signing the testator’s name at the testator’s direction and in and administration, which are often relevant to wills (Ala. Code the testator’s presence, whether or not that person is the testator’s §§ 43-2-1 to 43-2-854). agent under a power of attorney (Ala. Code § 43-8-131).

PERMISSIBLE FORM OF WILL OUT-OF-STATE WILLS 5. What form must the will take? In particular, please specify Alabama permits the probate of out-of-state wills if they are whether: executed in compliance with either: Alabama law (specifically Alabama Code Section 43-8-131). Handwritten (holographic) wills are permitted. The law at the time of execution of the place where the will is Oral (nuncupative) wills are permitted. executed. Contractual wills are permitted. The law of the place where, at the will’s execution, the testator is Statutory wills are permitted. domiciled, has a place of abode, or is a national. Electronic wills are permitted. (Ala. Code § 43-8-135.) Out-of-state wills are binding. WILL EXECUTION REQUIREMENTS HANDWRITTEN (HOLOGRAPHIC) WILLS 6. What are the execution requirements for a valid will? In A holographic will is a will that is handwritten by the testator particular, please specify: in its entirety. In Alabama, this term historically also referred to handwritten wills that are unwitnessed. Requirements for the testator’s signature. Any requirements for witnesses to a will. Alabama allows holographic wills if the holographic will meets the Any requirements for the will to be notarized. statutory requirements for execution and witnessing (Ala. Code § 43-8-131 and see Will Execution Requirements). Alabama does not An example of an attestation clause. permit unwitnessed holographic wills of Alabama residents (Ala. Code The requirements for a self-proving affidavit. § 43-8-131, cmts. and Black v. Seals, 474 So.2d 696, 697-98 (Ala. 1985)). If electronic wills are permitted, any different execution Alabama recognizes the holographic wills of non-residents if the requirements. holographic will is valid in the decedent’s domicile, which means that its execution complies with the law either of: TESTATOR’S SIGNATURE The place where the will was executed at the time of execution. A will must be signed either: The place where, at the time of execution or at the time of death, By the testator. the testator is domiciled, has a place of abode, or is a national. For the testator by another person signing the testator’s name: (Ala. Code § 43-8-135 and Black, 474 So.2d at 697-98.) zzat the testator’s direction; and ORAL (NUNCUPATIVE) WILLS zzin the testator’s presence A nuncupative will is an oral will. Alabama does not allow (Ala. Code § 43-8-131.) nuncupative wills, including out of state nuncupative wills. All wills The testator’s signature may be placed anywhere on the face of the must be in writing to be probated in Alabama. (Ala. Code §§ 43-8- will if the testator signs with the intent of authenticating the will as 131, 43-8-135, cmts. and see Out-of-State Wills.) a completed testamentary act (Plemons v. Tarpey, 78 So.2d 385, 386 (Ala. 1955)). CONTRACTUAL WILLS A contractual agreement by a testator to make or not to revoke a WITNESS REQUIREMENTS testamentary disposition or to die intestate is valid if executed after Alabama requires every will to be signed by at least two persons January 1, 1983 and either: each of whom witnessed either the testator’s: The will states the contract’s material provisions. Signing of the will. The will makes express reference to the contract and extrinsic Acknowledgement of the signature or of the will (including where evidence proves the contract terms. the will was signed by some other person in the testator’s presence There is a separate writing signed by the testator showing the and by her direction). contract. (Ala. Code § 43-8-131.) The execution of a joint will or mutual wills does not create a Alabama permits any person generally competent to be a witness presumption of a contract not to revoke the will or wills. (Ala. Code (meaning one who is competent to testify about the facts of § 43-8-250.) execution) to act as a witness to a will (Ala. Code § 43-8-134(a)). STATUTORY WILLS A will or any of its provisions is not invalid because the will is Alabama does not authorize statutory wills. signed by an interested witness (for example, if a witness receives a bequest or is named as executor under the will) (Ala. Code ELECTRONIC WILLS § 43-8-134(b)). Alabama does not authorize electronic wills.

NOTARY REQUIREMENTS GIFTS TO EXECUTORS Alabama does not require a will to be notarized unless the will In Alabama, a will generally can provide for gifts to executors. includes a self-proving affidavit. All self-proving affidavits must be notarized (Ala. Code § 43-8-132 and see Self-Proving Affidavit). GIFTS TO TRUSTEES NAMED IN THE WILL In Alabama, a will generally can provide for gifts to trustees named SAMPLE ATTESTATION CLAUSE in the will. The attestation clause states that the will was signed or acknowledged by the testator in the presence of the witnesses. The GIFTS TO GUARDIANS attestation clause typically takes the form: In Alabama, a will generally can provide for gifts to guardians. ”We, [WITNESS NAME] and [WITNESS NAME], the witnesses, GIFTS TO LAWYER DRAFTSPERSON sign our names to this instrument, and do hereby declare that the testator signs and executes this instrument as the Unless the drafting lawyer is related to the testator, the drafting testator’s last will and that the testator signs it willingly (or lawyer cannot ethically prepare a will in which the drafting lawyer (or willingly directs another to sign for the testator), and that each the drafting lawyer’s parent, child, sibling, or spouse) is a beneficiary of us, in the presence and hearing of the testator, hereby signs of a substantial gift (ARPC Rule 1.8(c)). The drafting lawyer is related this will as witness to the testator’s signing, and that to the to the testator if the relationship is by blood or by marriage (Cooner v. best of our knowledge the testator is 18 years of age or older, of Ala. State Bar, 59 So.3d 29, 40 (Ala. 2010). sound mind, and under no constraint or undue influence.” Alabama does not define a “substantial gift,” though a simple gift, The witnesses sign the will below the attestation clause. such as a present given at a holiday or as a token of appreciation is not considered a substantial gift. If preparation of a legal SELF-PROVING AFFIDAVIT instrument is required to make the gift to a lawyer draftsperson, A self-proving affidavit is not required to create a valid will in then the gift may be substantial. (ARPC Rule 1.8 cmts.) If the Alabama. testator wishes to include this gift to an unrelated drafting attorney, counsel should advise the testator to seek detached advice from If a will is self-proved: another lawyer. Compliance with the signature requirements for execution is Even if the drafting lawyer is a relative of the testator and this rule conclusively presumed. According to the Commentary of Section does not apply, the testator may wish to seek detached advice for 43-8-132 of the Alabama Code this forecloses a question about the gift to be valid. A will contestant could still argue that the will whether the witnesses signed in the presence of the testator, for was the product of undue influence if the drafting lawyer receives a example. gift or is appointed as fiduciary under the will. For example, the will Other requirements of execution, such as testamentary capacity, contestant could show undue influence if: are presumed subject to rebuttal. A confidential relationship existed between a beneficiary and the A self-proving will may be probated without the need for any testator. additional proof, such as witness testimony. A self-proving will does The influence by the beneficiary over the testator was dominant not preclude proof of undue influence, lack of testamentary capacity, and controlling. revocation, fraud, or forgery. (Ala. Code § 43-8-132, cmts.) There was undue activity by the beneficiary in obtaining the will’s For more information on self-proving affidavits, see Standard execution. Clause, Signature Pages for Will and Self-Proving Affidavit (AL) (Parker v. Marshall, 549 So.2d 463, 466 (Ala. 1989).) (W-013-5788). A confidential relationship between an attorney acting as ELECTRONIC WILL EXECUTION REQUIREMENTS draftsperson and the client-testator will likely be presumed, as will the dominance of the attorney-draftsperson involving an undue Alabama does not authorize electronic wills. influence claim on an inter vivos transaction (such as the execution of a will) (see Verner v. Mosely, 127 So. 527, 529 (Ala. 1929)). LIMITATIONS ON GIFTS TO FIDUCIARIES AND ATTORNEY DRAFTSPERSON RIGHTS OF FAMILY MEMBERS TO INHERIT 7. Are there any limitations on beneficiaries a testator can name 8. Are a testator’s will bequests affected by community in a will? In particular, please specify if a will can provide for property laws, elective share laws, or other local laws that gifts to: prohibit a testator from excluding a beneficiary from taking a Executors. share in the estate? In particular, please specify if a will can Gifts to trustees named in the will. disinherit: Gifts to guardians. The testator’s spouse. The lawyer who drafted the will. A child of the testator.

DISINHERITING A TESTATOR’S SPOUSE DISINHERITING A CHILD OF THE TESTATOR Alabama law generally disfavors disinheriting a spouse, as indicated The testator may intentionally omit a child from his will, as heirship by the spouse’s elective share and set aside rights. However, the is subject to the testator’s clear intent (Shackleford v. Washborn, 60 rule is not absolute and the spouse may waive these rights in a valid So. 318, 320 (Ala. 1912)). There is no elective share right for children prenuptial or postnuptial agreement (Ala. Code § 43-8-72). unlike for a spouse. However, minor or dependent children may be entitled to the homestead, exempt property, and family allowances. ELECTIVE SHARE If the decedent is survived by a spouse or minor and dependent When a decedent dies with a will, if the decedent’s surviving spouse children, certain assets are not considered part of the decedent’s receives less than the statutory elective share amount under the will, estate and are instead set aside for the family, such as: the surviving spouse can opt to receive the statutory elective share in its place. The statutory elective share is the lesser of: A homestead allowance of $15,000 (Ala. Code § 43-8-110). An exempt property allowance of a value up to $7,500 in All the decedent’s estate reduced by the value of the surviving spouse’s separate estate. household furniture, automobiles, furnishings, appliances, and personal effects (Ala. Code § 43-8-111). One-third of the decedent’s estate. A family allowance of money up to $15,000 (Ala. Code §§ 43-8-112 (Ala. Code § 43-8-70(a).) and 43-8-113). Any assets that are not in the decedent’s estate (such as assets in If there is no surviving spouse: a revocable trust and other non-probate assets) are not counted to determine the spouse’s elective share (Whited v. Holmes, 816 A minor child would receive a homestead allowance of $15,000 So.2d 20, 24 (Ala. 2001), Russell v. Russell, 758 So.2d 533, 538 (Ala. divided by the number of minor and dependent children of the 1999) and see State Q&A, Revocable Trusts: Alabama: Question 10 decedent (Ala. Code § 43-8-110). (W-013-5787)). Children of the decedent are jointly entitled to an exempt property allowance of up to $7,500 in household furniture, automobiles, The surviving spouse’s separate estate includes: furnishings, appliances, and personal effects (Ala. Code § 43-8-111). Property owned by the surviving spouse outright or in fee simple The surviving minor children the decedent was obligated to absolute immediately after the decedent’s death. support and children who were in fact being supported by All legal and equitable interests in property the possession or the decedent are entitled to a reasonable allowance in money enjoyment of which by the surviving spouse is acquired only out of the estate for their maintenance during the period of because the surviving spouse survived the decedent. administration up to $15,000. This allowance may not continue All income and other beneficial interests of the surviving spouse. for longer than one year if the estate is inadequate to discharge allowed claims. (Ala. Code §§ 43-8-112 and 43-8-113.) (Ala. Code § 43-8-70(b).) Children who are born after the will is executed and are not provided The elective share right can be waived, wholly or partially, before or for in the will may be entitled to a share of the decedent’s estate in after marriage, by a written contract, agreement, or a waiver signed certain circumstances. For more information about the inheritance by the party waiving after fair disclosure (Ala. Code § 43-8-72). rights of after-born children, see Question 14: After-Born Child. If a married person not domiciled in Alabama dies, the right of the surviving spouse to take an elective share of the decedent’s Alabama COMMON WILL PROVISIONS property is governed by the law of the decedent’s domicile at death (Ala. Code § 43-8-70(c)). 9. Discuss specific provisions commonly found in a will and the rules that apply to these provisions in your state. In particular, Estate Set-Asides please discuss the following provisions and their effect:

If the decedent is survived by a spouse or minor and dependent Incorporation by reference. children, certain assets are not considered part of the decedent’s Disposition of remains or for funeral wishes. estate and are instead set aside for the family, such as: No-contest clause. A homestead allowance of $15,000 (Ala. Code § 43-8-110). Rule against perpetuities. An exempt property allowance of a value up to $7,500 in household furniture, automobiles, furnishings, appliances, and Sample rule against perpetuities clause. personal effects (Ala. Code § 43-8-111). A family allowance up to $15,000 (Ala. Code §§ 43-8-112 and INCORPORATION BY REFERENCE 43-8-113). Incorporation by reference is a doctrine that allows a testator to refer to outside documents and incorporate the provisions of these outside A spouse who marries the testator after the will is executed (called documents in the testator’s will if certain specific requirements are a pretermitted spouse) may have additional rights to the decedent satisfied. Any writing in existence when a will is executed may be spouse’s estate if certain conditions are met. For additional information incorporated by reference into a will if the will language indicates this regarding a pretermitted spouse’s share, see Question 14: Effect of intent and describes the writing sufficiently to permit its identification Marriage. (Ala. Code § 43-8-139).

Written lists created after the execution of the will cannot be beneficiary has something to lose if the beneficiary unreasonably incorporated by reference. These lists are therefore not legally challenges the will. binding whether they address the disposition of tangible personal property or anything else, unless executed with the statutory There is no Alabama case that directly addresses the issue of formalities of a will (Ala. Code § 43-8-131). enforceability of a no-contest clause, so enforceability remains uncertain. However, they are disfavored and will be construed DISPOSITION OF REMAINS OR FUNERAL WISHES narrowly to avoid a forfeiture. This means that generally a beneficiary is only deemed to have breached a no contest clause, and therefore Including specific burial, cremation, or other directions for the forfeited the beneficiary’s right to inherit under the will, if the disposition of the testator’s remains in the will is permitted but beneficiary’s acts come strictly within the no-contest clause’s terms optional. The decedent is often buried before the will is admitted to (Harrison v. Morrow, 977 So.2d 457, 460-62 (Ala. 2007)). probate and sometimes even before the will is located or read, so the will may not an ideal place to address this issue. RULE AGAINST PERPETUITIES It is more practical and typical in Alabama to use a separate The Alabama Uniform Statutory Rule Against Perpetuities applies document to authorize an agent to direct the disposition of the to nonvested property interests or powers of appointment created decedent’s remains and to carry out funeral wishes. Any person on or after January 1, 2012 (Ala. Code § 35-4A-6). Under this rule, at least 18 years of age and of sound mind may authorize another regardless of the language in the will a nonvested property interest is person to control the disposition of her remains under an affidavit invalid unless: executed before a notary public in substantially the following form: When the interest is created, it is certain to vest or terminate no later than 21 years after the death of an individual then alive. The interest either vests or terminates within 100 years after its ”State of Alabama creation. (Ala. Code § 35-4A-2(a).)

County of [COUNTY] SAMPLE RULE AGAINST PERPETUITIES PROVISION ”Maximum Duration of Trusts. If any trust created by this Will, or by the exercise of any power of appointment I, [PRINCIPAL NAME] designate [AGENT NAME] to control the conferred by this Will, does not terminate pursuant to the disposition of my remains upon my death. I __ have __ have foregoing provisions in this Will prior to the expiration of not attached specific directions concerning the disposition of any then applicable rule against perpetuities, then the trust my remains. If specific directions are attached, the designee shall terminate upon the expiration of the Alabama statutory shall substantially comply with those directions, provided the perpetuities period, and whatever trust property shall then directions are lawful and there are sufficient resources in my be remaining in the trust shall be distributed to the person estate to carry out those directions. for whose primary or sole benefit the trust then subsists; provided, however, that if measuring lives are necessary, then the measuring lives for purposes of the applicable rule Subscribed and sworn to before me this [DATE] day of the against perpetuities shall be the death of the last to die of month of [MONTH] of the year [YEAR]. the issue of my parents who were living at my death. If such trust does not have a primary or sole beneficiary but has more than one current beneficiary, then the trustee shall [PRINCIPAL NAME] distribute the trust property equally between or among the current beneficiaries of the trust who are non-skip persons (as defined in IRC Section 2613(b)), or if all of the current beneficiaries are skip persons (as defined in IRC Section 2613(a)), then the trustee shall distribute the trust property (signature of notary public)” equally between or among the current beneficiaries of the trust. The foregoing provisions shall not apply to (a) any (Ala. Code § 34-13-11(a)(2).) trust to which a rule against perpetuities does not apply under applicable state law; and (b) any trust to which a rule NO-CONTEST CLAUSE against perpetuities does not apply if the trust so specifies, it being my intent that a rule against perpetuities shall only A no-contest clause, also called an in-terrorem clause, is an optional apply where required by applicable law. If any trust created provision in a will. The main purpose of including this provision is hereunder is merged with any trust created under any other to discourage beneficiaries from challenging the will. No-contest trust agreement or will, the merged trust shall not continue clauses are more likely to be effective if the testator both: beyond the date on which the earliest maximum term of the Includes a clear, narrowly-tailored no-contest clause. trusts so merged would, without regard to such merger, have Provides the beneficiary that the testator thinks may contest been required to expire.” the will with a bequest that is substantial enough so that the

EXECUTORS both parties, the court will enforce that agreement unless it is unconscionable (Ala. Code § 43-2-848(d)). 10. What are the rules regarding executor appointments in your state? In particular, please discuss: Compensation Provided by Will The terminology that is used to identify the person who is in A will may also provide for compensation. However, if there is no charge of the estate (referred to here as the executor). contract regarding fees, the personal representative may either: Criteria for qualifying as an executor, including limitations on Decline to serve for the compensation stated in the will. who a testator can name as executor. Renounce those provisions and, if there is no other personal Rules regarding compensation of executors. representative willing to serve for the specified compensation, be Whether the drafting attorney can serve as executor. entitled to reasonable compensation. Priority rules for appointment of executor if the named executor (Ala. Code § 43-2-848(c).) fails to qualify. Compensation Determined by the Court Who has authority to act when there are multiple executors. Unless otherwise agreed to in writing by the decedent (or all affected beneficiaries) and the personal representative, if reasonable TERMINOLOGY USED TO IDENTIFY PERSON IN CHARGE OF ESTATE compensation is determined by the court, it is generally limited to both: The person in charge of the estate is often referred to as the personal 2.5% of the value of all property received and under the possession representative in Alabama, although the terms “executor” and and control of the personal representative. “administrator” are also used when appropriate. The term “personal representative” includes executors, administrators, their successors, 2.5% of all disbursements. special administrators, and persons who perform similar functions (Ala. Code § 43-2-848(a), (d)). The court determines what under applicable law (Ala. Code § 43-8-1(24)). compensation is reasonable within these limits and based on several factors, including: For example, executors oversee testate estates while administrators The novelty and difficulty of the administrative process. oversee intestate estates (Ala. Code §§ 43-2-20 and 43-2-40). The skill required to perform the service. QUALIFICATION AS PERSONAL REPRESENTATIVE The likelihood that the acceptance of the employment will Any person may serve as executor unless the person: preclude other employment. Is under the age of 19 years. The fee commonly charged in the locality for similar services. Has been convicted of an infamous crime, which includes treason, The amount involved and the results obtained. conspiracy, embezzlement of public money, bribery, perjury, voting The requirements imposed by the estate’s circumstances and the fraud, and all felony convictions for these purposes (Ala. Op. Atty. condition of the estate. Gen. No. 2008-037 (Jan. 4, 2008)). The nature and length of the professional relationship with the Is incompetent to discharge her duties. decedent. Nonresidents may not be administrators unless they are at the time The experience, reputation, diligence, and ability of the person a qualified executor or administrator of the same estate in another performing the services. jurisdiction. (Ala. Code § 43-2-22(a).) The personal representative’s liability, financial or otherwise. The risk and responsibility involved. COMPENSATION OF PERSONAL REPRESENTATIVES (Ala. Code § 43-2-848(a).) A personal representative is entitled to reasonable compensation for services rendered. Reasonable compensation can be determined in In these cases, the court may also permit additional compensation many ways, including by: for extraordinary services performed for the estate (Ala. Code Agreement of the decedent and the personal representative. § 43-2-848(b)). Agreement of all beneficiaries and the personal representative. DRAFTING ATTORNEY AS PERSONAL REPRESENTATIVE Provision in the will. Alabama does not disqualify a drafting attorney from serving as The court. executor unless the drafting attorney is otherwise disqualified from (Ala. Code § 43-2-848.) serving as executor under Alabama Code Section 43-2-22(a) (see Qualification as Personal Representative). Compensation by Agreement However, the drafting attorney should consult the Alabama Rules of A decedent (or all affected beneficiaries) may contract with Professional Conduct to ensure there is no conflict of interest that would the personal representative about the amount of or method of preclude serving as executor (see ARPC Rule 1.7 to ARPC Rule 1.9). determining compensation. If that agreement is accepted by

FAILURE OF NAMED EXECUTOR TO QUALIFY TRUSTEES If all persons named in the will are unfit to serve, letters of 11. What are the rules regarding appointment of trustees for administration with the will annexed may be granted (Ala. Code testamentary trusts in your state? In particular, please discuss: § 43-2-22(b)). If no person is named in the will as executor or if the named executors renounce or fail to apply within 30 days after Criteria for qualifying as a trustee. probate or are unfit to serve, the following persons have priority Rules regarding compensation of trustee. to serve as administrator with the will annexed in the following Priority rules for appointment of trustee if the named trustees order: fail to qualify. The residuary legatee (the residuary beneficiary) under the will Who has authority to act when there are multiple trustees. who must apply within 30 days of probate.

The principal legatee under the will who must apply within 30 days QUALIFICATION AS TRUSTEE of probate. Any qualified person designated by the terms of the trust or (Ala. Code § 43-2-27.) If the above individuals fail to apply within appointed on a vacancy in the trusteeship may serve as trustee (see 30 days of probate, refuse to accept, or are unfit to serve as Ala. Code § 19-3B-704). The definition of person under the Alabama administrator, then letters of administration with the will annexed Uniform Trust Code is expansive and includes: are granted to those persons in the same order as letters of administration are granted in cases of intestacy: Individuals. The decedent’s surviving spouse. Corporations. The decedent’s next of kin entitled to a share of distribution of Business trusts. the estate. Estates or trusts. The estate’s largest creditor residing in Alabama. Partnerships or limited liability companies. The county or general administrator (but only for all counties with Associations or joint ventures. a population of 400,000 or more and for any county having an Governments, or governmental subdivisions, agencies, or elected general or county administrator). instrumentalities. Any other person the judge may choose to appoint. Public corporations. (Ala. Code §§ 43-2-27 and 43-2-42.) Any other legal or commercial entities. Administrators with the will annexed have the same powers and (Ala. Code § 19-3B-103(10).) However, to be qualified to serve as authority over an estate that an executor named in the will would trustee the person must: have (Ala. Code § 43-8-255). Have capacity to act as trustee (that is, the capacity to hold title to property free of trust). MULTIPLE PERSONAL REPRESENTATIVES Comply with additional requirements that state banking statutes Unless the will provides otherwise, the agreement of all co- may impose on corporate trustees. representatives is generally required on all acts connected with the (Ala. Code § 19-3B-103, unif. cmts.) administration and distribution of the estate (Ala. Code § 43-2-846). Trustees include the original trustee, additional and successor However, the concurrence of all co-representatives is not required: trustees, and co-trustees (Ala. Code § 19-3B-103(21)). All acting When any co-representative receives and gives receipts for trustees have the powers of, and are subject to the duties imposed property due to the estate. on, trustees under the Alabama Uniform Trust Code. When the concurrence of all cannot be readily obtained in the time A settlor, co-trustee, or beneficiary may seek to remove a trustee reasonably available for emergency action necessary to preserve for certain reasons (see State Q&A, Revocable Trusts: Alabama: the estate. Question 18 (W-013-5787)). When one co-representative has been delegated authority to act for the others. COMPENSATION OF TRUSTEE (Ala. Code § 43-2-846.) A trustee is compensated according to either: If a third party who is dealing with the co-representative is unaware The testamentary trust terms. that there is another co-representative or is advised by the personal A written fee agreement with the testator. representative with whom the third party is dealing that the personal A written fee agreement with the adult current permissible income representative has the authority to act alone, then that third party is distributees or if the trustee’s fees are allocated to principal, a as fully protected in dealing with only with that co-representative as written fee agreement with the adult presumptive remainder if that co-representative was the sole personal representative (Ala. beneficiaries. Code § 43-2-846).

What is reasonable compensation under the circumstances if there Vacancy in Trusteeship for Noncharitable Trust are no relevant trust terms or fee agreement. A vacancy in a trusteeship for a noncharitable trust is filled in the (Ala. Code § 19-3B-708(b).) following order by a person: Designated to act as a successor trustee in the trust instrument. Compensation Under the Trust or Written Agreement Appointed by unanimous agreement of qualified adult Fees paid under the trust terms or a written fee agreement are beneficiaries or any entity that is a qualified beneficiary. presumed to be reasonable (Ala. Code § 19-3B-708(b), Ala. cmts.). However, Alabama courts may allow less or more compensation if: Appointed by the court. (Ala. Code § 19-3B-704(c).) The duties of the trustee are substantially different from those contemplated when the trust was created or the applicable A qualified beneficiary is a living beneficiary who, on the beneficiary’s agreement was executed. qualification, either: The compensation is unreasonably high or low. Is a distributee (recipient) or permissible distributee of trust income (Ala. Code § 19-3B-708(b).) Lowering fees may be appropriate if a or principal. trustee delegated significant duties to agents. A trustee with special Would be a distributee or permissible distributee of trust income or skills may be entitled to extra compensation for performing services principal if the interests of the above distributees then terminated ordinarily delegated. (Ala. Code § 19-3B-708, unif. cmts.) (but the termination of those interests would not cause the trust to terminate). Reasonable Compensation Would be a distributee or permissible distributee of trust income or If the testamentary trust terms do not specify the trustee’s principal if the trust then terminated. compensation and there is no written fee agreement, then a (Ala. Code § 19-3B-103(14).) trustee is entitled to compensation that is reasonable under the circumstances (Ala. Code § 19-3B-708(a)). Relevant factors in Vacancy in Trusteeship for Charitable Trust determining the reasonableness of compensation include: A vacancy in a trusteeship for a charitable trust is filled in the The custom of the community. following order by a person: The trustee’s skill, experience, and facilities. Designated to act as a successor trustee in the trust instrument. The time devoted to trust duties. Selected by the charitable organizations expressly designated to The amount and character of the trust property. receive distributions under the trust instrument. The degree of difficulty, responsibility, and risk assumed in Appointed by the court. administering the trust, including in making discretionary (Ala. Code § 19-3B-704(d).) distributions. The nature and costs of services rendered by others. Vacancy in Trusteeship for Trust that is Both Noncharitable The quality of the trustee’ s performance. and Charitable (Ala. Code § 19-3B-708, unif. cmts.) The court may adjust A vacancy in a trusteeship of a trust that is both noncharitable and compensation under the trust or written fee agreement that is charitable is filled in the following order by a person: unreasonably low or high. This power of adjustment cannot be Designated to act as a successor trustee in the trust instrument. waived by the trust terms. (Ala. Code §§ 19-3B-105(b)(7) and Appointed by unanimous agreement of the qualified adult 19-3B-708(b).) beneficiaries, any entity which is a qualified beneficiary, and A trustee who invests in certain collective funds maintained by an the charitable organizations expressly designated to receive investment company who provides services for that investment distributions under the trust instrument. company may also be compensated by that investment company for Appointed by the court. providing those services if certain statutory requirements are met (Ala. Code § 19-3B-704(e).) (Ala. Code § 19-3B-708(c)). MULTIPLE TRUSTEES Trustees may pay themselves compensation without petitioning the court (Ala. Code § 19-3B-816(15), (29)). However, the trustee When there are multiple trustees and they are unable to reach a and all interested parties may determine compensation by non- unanimous decision after consultation among all the co-trustees, judicial settlement agreement or by judicial proceeding (Ala. Code the trustees may act by majority decision in Alabama (Ala. Code §§ 19-3B-111(d)(4) and 19-3B-201(d)(11)). Trustees should obtain § 19-3B-703(a)). A settlor generally should not designate co-trustees consent of interested parties before paying their compensation to without careful reflection because: minimize the chances of a conflict or dispute. Dividing responsibility among co-trustees is often difficult. The accountability of any individual trustee is uncertain. FAILURE OF NAMED TRUSTEE If the trustees must act together, obtaining consent of all trustees If one or more co-trustees continue to serve, a vacancy in the can be time-consuming and burdensome. If the trustees can act trusteeship does not need to be filled. If there is no remaining individually, there may be confusion. trustee, the vacancy must be filled. (Ala. Code § 19-3B-704(b).)

Unless the trust names an odd number of trustees, deadlocks court has the authority to appoint any person whose appointment requiring court resolution can occur. would be in the best interest of the minor. (Ala. Code § 26-2A-76.)

Potential problems can be reduced by addressing division of GUARDIANSHIP BINDING OR PERSUASIVE responsibilities in the terms of the trust or by not naming multiple trustees. Guardianship appointments in a parent’s will are generally binding (Ala. Code §§ 26-2A-72 and 26-2A-73 and see Qualification as Guardian). Appointing a guardian in a parent’s will generally GUARDIANS guarantees that the named guardian is appointed. 12. What are the rules regarding appointment of guardians However, the following persons may petition the court for removal of for minor children by will in your state? In particular, please the guardian if removal would be in the minor’s best interest: discuss: Any person interested in the welfare of the minor. Criteria for qualifying as a guardian. The minor if the minor is age 14 or older. Whether a guardianship nomination in the will is binding or (Ala. Code § 26-2A-81(a) and see Qualification as Guardian.) persuasive. At what age the guardianship terminates. ACCEPTANCE OF GUARDIANSHIP Subject to the rights of the minor to remove a guardian under QUALIFICATION AS GUARDIAN Alabama Code Section 26-2A-72, a parental appointment becomes effective when the guardian files an acceptance within 30 days after In Alabama, a person can qualify as a guardian of a minor by parental notice of the guardianship proceeding in the court where either: appointment or by court appointment (Ala. Code §§ 26-2A-20(7) and 26-2A-70). The will is probated if the nomination is made in a will. The minor resides or is present if the nomination is made in a Appointment by Parent nontestamentary instrument. The parent of an unmarried minor may appoint a guardian by will (Ala. Code § 26-2A-71(b).) or by separate writing signed by the parent and attested by at least If two or more appointments are made, the latter in time has priority. two witnesses or acknowledged before a notary public (Ala. Code If both parents are dead or incapacitated, an effective appointment § 26-2A-71(a)). A parental appointment is effective when: by the parent who was eligible to make the appointment and who Both parents are dead or incapacitated or the surviving parent has dies or became incapacitated later in time has priority. (Ala. Code no rights or is adjudged incapacitated, § 26-2A-71(b).) The nominated guardian files an acceptance in the court where the will is probated or, if the nominating instrument is not a will, in the On acceptance of appointment, the guardian must give written notice court where the minor resides or is present. about when the appointment is effective to both: (Ala. Code § 26-2A-71(b), (c).) The minor. The person having the minor’s care or the minor’s nearest adult A guardian appointed by a parent has priority to serve unless either: relative. The minor who is age 14 or older objects to the appointment (but, (Ala. Code § 26-2A-71(d).) the court may still appoint that person in a proper proceeding). The parental nominee fails to accept the appointment within TERMINATION OF GUARDIANSHIP 30 days after notice of the guardianship proceeding A guardianship continues until terminated (Ala. Code § 26-2A-70). (Ala. Code §§ 26-2A-72 and 26-2A-73.) If the minor is age 14 or older, A guardian’s authority terminates on the minor’s: the court must appoint a person nominated by the minor (instead of Death. the parent) unless the appointment is contrary to the minor’s best Adoption. interest (Ala. Code § 26-2A-76). Marriage. A guardian nominated in a parent’s will (or other properly signed and Attaining the age of majority (age 19). attested writing by the parent), on acceptance, must provide proper notice (Ala. Code § 26-2A-71(d) and see Acceptance of Guardianship). (Ala. Code §§ 26-1-1 and 26-2A-79.) The guardian is subject to removal in certain circumstances A guardian’s authority terminates on the death, resignation, or removal (Termination of Guardianship). of the guardian. The resignation of the guardian does not terminate the guardianship until approved by the court. The termination of the Appointment by Court guardianship does not affect the guardian’s liability for previous acts If both parents are deceased or incapacitated and there is no parental or the obligation to account for funds or assets of the minor. (Ala. Code appointment, the court must appoint a guardian. If the minor is age § 26-2A-79.) 14 or older, the court must appoint a person nominated by the minor (instead of the parent) unless the appointment would be contrary to Any person interested in the welfare of the minor, or the minor if 14 or the best interest of the minor. If the court selects the guardian, the more years of age, may file a petition for removal of the guardian if

removal is in the best interest of the minor (Ala. Code § 26-2A-81(a)). Merely revoking a second will that would have revoked a first will if the After notice and hearing on the petition for removal, the court may second will remained effective at the testator’s death does not by itself terminate the guardianship and make any further appropriate order reinstate the first will. The testator must have intended to reinstate the (Ala. Code § 26-2A-81(c)). first will by the revocation of the second will, as shown by either: The circumstances of the revocation of the second will. CHANGES TO WILL AFTER EXECUTION The testator’s contemporaneous or subsequent declarations in a writing executed with the formalities of a will 13. What are the rules regarding changes to a will after it is executed? In particular, please specify: (Ala. Code § 43-8-138.)

How a will can be modified after it is executed. SPECIAL CIRCUMSTANCES REGARDING GIFTS How a will can be revoked after it is executed. OR RECIPIENTS Whether a previously revoked will can be reinstated, and if so, how. 14. Please describe what happens if: MODIFICATION OF A WILL A beneficiary does not survive the testator. In Alabama, the testator can modify a previous will by executing a A gift is not owned by the testator at the testator’s death. codicil that revokes and replaces only the parts of the will the testator There are not enough assets passing through the will to satisfy wants to change. A codicil is a part of a will. It is therefore to be all the gifts. construed with the will and may confirm, vary, or change an intention The gifted property is encumbered. expressed in the will. (Betts v. Renfro, 148 So. 406, 409 (Ala. 1933).) The testator and a beneficiary or fiduciary to which the testator In Alabama, a will is defined to include all codicils and all testamentary was married when the will was executed are no longer married instruments that merely appoint an executor or revoke or revise when the testator dies. another will (Ala. Code § 43-8-1(34)). A codicil must be executed with The testator gets married after the will is executed. the formalities required for a will (Ala. Code § 43-8-131). A child is born after the will is executed. A codicil republishes the will it modifies as of the date of the codicil A beneficiary causes the testator’s death. and the two instruments are construed by the court as a single The testator and a beneficiary die at the same time. instrument as of the date of republication (Reed v. Shipp, 308 So.2d 705, 711 (Ala. 1975)). BENEFICIARY DOES NOT SURVIVE REVOCATION OF A WILL Alabama provides default rules about how property is distributed A will or any part of a will may be revoked by the testator or another if a devisee (beneficiary) does not survive the testator (or the devise person in the testator’s presence and by the testator’s consent and otherwise fails) in the absence of a will provision that directs direction: otherwise (Ala. Code § 43-8-222). If a devisee does not survive the settlor for five days or as specifically provided in the will, the gift Executing a new will or codicil that revokes the prior will, in whole to that devisee lapses (Ala. Code § 43-8-220). If the will does not or in part, either expressly or by inconsistency of their terms (see express a different intention, then: Will Execution Requirements). A devise, other than a residuary devise that fails for any reason Burning, tearing, or destroying the will with the intent and for (that is, the devise lapses), becomes part of the residue. the purpose of revoking it. If the physical act is by someone other than the testator, at least two witnesses must prove the testator’s Where there are two or more residuary beneficiaries and the consent and direction. share of a residuary beneficiary fails, the share that fails is divided among the other living residuary beneficiaries pro rata. (Ala. Code § 43-8-136.) (Ala. Code § 43-8-225.) If the testator wants to replace a previous will in its entirety, a new will is generally prepared that expressly revokes the prior will. Most However, if the deceased devisee is the testator’s grandparent or a wills contain a standard provision that expressly revokes all prior descendant of the testator’s grandparent, an issue of the deceased wills to avoid confusion after the testator’s death. devisee who survive the testator by five days take the share of the deceased devisee as follows: REINSTATEMENT OF A WILL The issue that are all the same degree of kinship to the devisee A previously revoked will may be reinstated by either: share equally. A subsequent writing executed with all the formalities of a will Where issue are not all the same degree of kinship to the devisee, that expresses the testator’s intent to reinstate the prior will (Price issue of more remote degree take by representation as described v. Marshall, 52 So.2d 149, 151 (Ala. 1951) and see Will Execution in Alabama Code Section 43-8-45. Requirements). For class gifts, a devisee who would be a member of the class if he A republication of a previously revoked will (that is, executing the survived the testator is treated as a devisee regardless of whether revoked will again) with the same formalities as are required for the devisee died before or after the will execution. the execution of a new will (Barker v. Bell, 49 Ala. 284 (1873)). (Ala. Code § 43-8-224.)

GIFT NOT OWNED BY TESTATOR AT DEATH General devises (gifts that do not direct delivery of any particular In Alabama, if a testator disposes of a specific item of property in property, such as gifts of a specific dollar amount or value). the testator’s will but the property is not part of the estate at the Specific devises (gifts of particular items, to be satisfied by receipt testator’s death, the bequest is generally extinguished (that is, it of the particular property described). adeems) and the beneficiary receives nothing (Matthews v. Matthews, (Ala. Code § 43-8-76(a).) 477 So.2d 391, 393 (Ala. 1985)). If the will expresses an order of abatement or if the testamentary However, there are certain statutory exceptions to the ademption rule plan or purpose of the devise would be defeated by the statutory where the beneficiary receives a distribution despite the absence of abatement order, then the shares abate as necessary to give effect the asset. The beneficiary of a specific devise generally has the right to the testator’s intent (Ala. Code § 43-8-76(b)). to the remaining portion of the specifically devised property, if any, and: A general devise charged against any specific property or fund is treated as a specific devise to the extent of the value of the property Any balance of the purchase price (together with any security against which it is charged. To the extent it exceeds the value of that interest) owing from a purchaser to the testator at death because property, it is treated as a general devise. (Ala. Code § 43-8-76(a).) of sale of the property. Any amount of a condemnation award for the taking of the GIFTED PROPERTY ENCUMBERED property unpaid at death. A specific devise passes subject to any mortgage interest existing Any proceeds unpaid at death on fire or casualty insurance on the at the date of death without right of exoneration and regardless property. of a general directive in the will to pay debts (Ala. Code § 43-8- Property owned by testator at his death because of foreclosure 228). However, if the testator’s will shows a contrary intention to or obtained in lieu of foreclosure of the security for a specifically exonerate a specific devise, then the testator’s will controls (Ala. Code devised obligation. § 43-8-222). (Ala. Code § 43-8-227(a).) EFFECT OF DIVORCE, ANNULMENT, OR DECREE OF SEPARATION However, if the testator intended a specific devise of certain securities A person who is divorced from the testator or whose marriage to rather than the securities’ value, the specific devisee is entitled only to: the testator has been annulled is not a surviving spouse for any As much of the devised securities as is part of the estate at the purpose. That person can no longer take under the testator’s will as a time of the testator’s death. surviving spouse unless she both: Any additional or other securities of the same entity derived, by Remarries the testator. entity action, from the securities specifically devised and owned by Is married to the testator at the testator’s death. the testator (such as stock dividends or stock options). Any securities of another entity derived from the securities A decree of separation that does not terminate the status of husband specifically devised and owned by the testator from merger, and wife is not a divorce or annulment for this purpose. (Ala. Code consolidation, or reorganization. § 43-8-252(a).) Any additional entity securities owned by the testator from a plan For intestate succession, the elective share, omitted spouse, after- of reinvestment in a regulated investment company. born children, exempt property, homestead, and family allowance a (Ala. Code § 43-8-226(a).) surviving spouse does not include a person who: Obtains or consents to a final decree or judgment of divorce from The testator’s lifetime gifts of property to a person are not deducted the decedent or an annulment of their marriage if the decree or against devises to that person (as an advancement) in the testator’s judgment is not recognized as valid in Alabama, unless the person will unless: subsequently either: The will provides for the deduction of the lifetime gift. zzparticipates in a marriage ceremony purporting to marry the The testator declares in a contemporaneous writing that the gift testator; or should be deducted from or is in satisfaction of the devise. zzlives together with the testator as spouses. The devisee acknowledges in writing that the gift was made in After the decedent obtained a decree or judgment of divorce satisfaction of the devise in the will. or annulment, participates in a marriage ceremony with a third (Ala. Code § 43-8-231.) person (not the decedent). Is a party to a valid proceeding resulting in an order terminating all NOT ENOUGH ASSETS marital property rights. Except for the surviving spouse’s elective share and unless the will (Ala. Code § 43-8-252(b).) provides otherwise, if the estate does not have sufficient assets to pay its obligations and all dispositions under the will, bequests generally For more information on intestate succession, see Rules of Intestacy. abate (that is are reduced or eliminated) in the following order: For more information on the elective share, exempt property, Property not disposed of by the will. homestead, and family allowances, see Rights of Family Members to Residuary devises. Inherit.

For more information on omitted spouses and after-born children, estate) will be entitled to the devise if it can be determined that the see Effect of Marriage and After-Born Child. devisee survived the testator. Requires that the devisee survive the testator for a stated time, in EFFECT OF MARRIAGE which case the survival period stated in the will governs. If a testator marries after executing a will and the will is not revised (Ala. Code § 43-8-220.) to include the new spouse, the omitted spouse receives a share of the estate equal to what the surviving spouse would have received had the testator died intestate unless either: LOST WILLS It appears from the will that the omission was intentional. 15. Please describe what happens if the original will is lost. The testator: Alabama permits the probate of copies of lost wills in certain zzprovided for the omitted spouse by transfer outside the will; and circumstances. In Alabama, if an original will was in the testator’s zzintended that the transfer was in place of a testamentary possession and it cannot be found after the testator’s death, there is provision (and the intent can be reasonably proven). a rebuttable presumption that the testator revoked the will (Lovell v. (Ala. Code § 43-8-90.) Lovell, 121 So.2d 901, 903 (Ala. 1960)).

AFTER-BORN CHILD If an original will is lost, a copy may be admitted to probate if the proponent can show: Children born or adopted after a parent makes a will may have rights to a portion of that parent’s estate (Ala. Code § 43-8-91). Alabama The existence of a will meeting the formalities required by law. law presumes a parent intended to provide for her children and that The loss or destruction of the will with no evidence that the omission of any after-born child is unintentional. testator intended to revoke the will. If a testator fails to provide in her will for a child born or adopted after The contents of the will in substance and effect. It is not necessary execution of the will, the omitted child receives a share in the estate to prove the exact words of the lost will but only the substance of equal in value to what the child would have received had the testator the will’s contents. died intestate unless either: These requirements may be proved by a single witness who read It appears from the will that the omission was intentional. the will or heard it read and remembers its contents. (Lovell, 121 When the will was executed, the testator already had at least one So.2d at 903.) child and devised substantially all the estate to the other parent of the omitted child. RULES OF INTESTACY The testator both: 16. Please describe how property passes if there is no will or if zzprovided for the omitted child by transfer outside the will; and the terms of the will distribute assets according to the laws of zzintended that the transfer was in place of a testamentary intestacy in your state (who are the testators heirs). provision (and the intent can be reasonably proven). (Ala. Code § 43-8-91(a).) Any part of an estate not effectively disposed of by will is distributed according to the Alabama statutes governing intestate succession If a testator does not provide for a living child solely because the (Ala. Code § 43-8-40). testator believes the child to be dead, the omitted child receives a share in the estate equal in value to what the child would have Under the Alabama intestacy statutes, the share of the surviving received had the testator died intestate (Ala. Code § 43-8-91(b)). spouse is, if: There is no surviving issue or parent of the decedent, the entire BENEFICIARY CAUSES TESTATOR’S DEATH intestate estate. A beneficiary who feloniously and intentionally kills the testator There is no surviving issue but the decedent is survived by a parent forfeits all benefits that the beneficiary may have through the or parents, the first $100,000 in value plus one-half of the balance testator’s estate either by will or under the Alabama Probate Code. of the intestate estate. The estate passes as if the killer predeceased the testator. (Ala. There are surviving issue and all of them are also issue of the Code § 43-8-253(a).) surviving spouse, the first $50,000 in value plus one-half of the balance of the intestate estate. SIMULTANEOUS DEATH There are surviving issue and one or more of them are not issue of A devisee must survive the testator by five days or he will be treated the surviving spouse, one-half of the intestate estate. as having predeceased the testator unless the will either: The estate is in two or more states, the aggregate share shall not Contains language dealing explicitly with simultaneous deaths, in exceed the aggregate of the amounts allowed under the Alabama which case the provisions in the will govern. Probate Code. Requires that the devisee survive the testator without any stated (Ala. Code § 43-8-41.) survival period, in which case the beneficiary (or the beneficiary’s

The part of the intestate estate that does not pass to the surviving zzhalf of the estate passes to the paternal grandparents if both spouse or the entire intestate estate if there is no surviving spouse survive or to the surviving paternal grandparent, or to the issue passes: of the paternal grandparents if both are deceased with the issue To the decedent’s issue. If they are all the same degree of kinship taking equally if they are all the same degree of kinship to the to the decedent they take equally. If they are of unequal degree, decedent, but if of unequal degree, those of more remote degree then those of more remote degree take by representation (as take by representation (as described in Alabama Code Section described in Alabama Code Section 43-8-45). 43-8-45); and If there is no surviving issue, to the decedent’s parent or parents zzhalf passes to the maternal relatives in the same manner, but if equally there are no surviving grandparent or issue of grandparent on either the paternal or the maternal side, the entire estate passes If there is no surviving issue or parent, to the issue of the parents to the relatives on the other side in the same manner as the other or either of them by representation (as described in Alabama Code half. Section 43-8-45). (Ala. Code § 43-8-42.) If there is no surviving issue, parent, or issue of a parent but the decedent is survived by one or more grandparents or issue of ”Issue” includes lineal descendants of all generations (Ala. Code grandparents: § 43-8-1(15)).

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