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Study 1: Will Requirements of Various States

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The American College of Study 1: Trust and Estate Will Requirements Counsel of Various States 3415 South Sepulveda Blvd. Suite 330 Los Angeles, CA 90034 ◆ STUDIES ◆ The summary of each state’s law Compiled by reflected in this study has been based on opinion received from a reporter for that state. With George Gordon Coughlin, Jr. rare exceptions, reporters are Fellows of the College from that Binghamton, New York state. Following the reporter’s name is the date as of which that state’s material was most recent- ly reviewed. Neither the College nor the individual reporters and editors (who have volunteered their time and experience in the preparation of the studies) assume any responsibility for the accuracy of the information con- tained in any study. December 1996 ©1996 The American College of Trust and Estate Counsel 1-1 RIGHTS OF CHILDREN BORN AFTER EXECUTION OF WILL James L. Permutt Birmingham, Alabama ALABAMA March 6, 1995 After-born or after-adopted children take the same share of the decedent’s estate as they would have taken in case of intestacy, unless (a) it appears from the will that the omission was intention- AGE OF TESTATOR al, (b) the testator had one or more children when the will was exe- cuted and devised substantially all his or her estate to the other Real Estate Personal Property parent of the omitted child, or (c) the testator provided for the child 18 18 by transfer outside the will and the intent that the transfer is in lieu of a testamentary provision is reasonably proven. If, at the time of (Code of Alabama 1975, Section 43-8-130). the execution of the will, the Testator fails to provide in his or her will for a living child solely because Testator believes the child to HOLOGRAPHIC (HANDWRITTEN, UNWITNESSED) be dead, such child takes the same share of decedent’s estate which an after-born or after-adopted child takes as hereinabove Not valid, unless its execution complies with the law of the place where the will was executed or testator was domiciled or has a set forth. (Code of Alabama 1975, Section 43-8-91). place of abode or is a national at time of execution or at a time of death (if other than Alabama). (Code of Alabama 1975, EFFECT OF TESTAMENTARY GIFT TO ATTESTING Sections 43-8-131 and 43-8-135). WITNESSES NUNCUPATIVE (ORAL) A will or any provision thereof is not invalid because the will is signed by an interested witness. (Code of Alabama 1975, Not valid. (Code of Alabama 1975, Section 43-8-131). Section 43-8-134). NUMBER AND AGES OF WITNESSES LIMITATION, IF ANY, ON CHARITABLE BEQUEST Two witnesses required. (Code of Alabama 1975, Section 43-8- None. 131). EFFECT OF LAPSED LEGACY No specific age, but witness must be competent to testify in court as to the facts of the execution. (Code of Alabama 1975, If a devisee who is a grandparent or a lineal descendant of a Section 43-8-134(a)) grandparent of the testator is dead at the time of execution of the will, fails to survive the testator, or is treated as if he or she pre- Age of majority in Alabama is 19 years. (Code of Alabama 1975, deceased the testator, the issue of the deceased devisee who Section 26-1-1). survive the testator by five days will take in place of the deceased devisee. One who would have been devisee under a class gift if REVOCATION AND REVOCATION BY MARRIAGE/DIVORCE he or she had survived the testator is treated as a devisee whether his or her death occurred before or after the execution of A will is revoked by a subsequent will (expressly or by inconsisten- the will. (Code of Alabama 1975, Section 43-8-224). cy) or by being burned, torn, canceled, obliterated or destroyed with the intent and the purpose of revoking it by the testator or by VALIDITY OF WILL EXECUTED OUTSIDE STATE another person in the testator’s presence by his consent and direc- tion. (Code of Alabama 1975, Section 43-8-136). A written will is valid if executed in compliance with Alabama law or if its execution complies with the law, at the time of execution, Divorce or annulment of marriage revokes provisions for former of the place where the will is executed, or with the law of the spouse unless the will expressly provides otherwise. place where, at the time of execution or the time of death, the Subsequent remarriage to the former spouse revives provisions testator is domiciled, has a place of abode, or is a national. revoked solely by this section. (Code of Alabama 1975, Section (Code of Alabama 1975, Section 43-8-135). 43-8-137). INCORPORATION BY REFERENCE ELECTION BY SURVIVING SPOUSE TO TAKE INTESTATE SHARE IN PREFERENCE TO TESTAMENTARY PROVISION* Any writing in existence when a will is executed may be incor- porated by reference if the language of the will manifests this If the decedent was domiciled in Alabama at the time of his or her intent and describes the writing sufficiently to permit its identifi- death, his or her surviving spouse may take an elective share cation. (Code of Alabama 1975, Section 43-8-139). equal to the lesser of (a) all of the decedent’s estate reduced by the value of the surviving spouse’s separate estate, or (b) one- VALIDITY OF LIVING WILL AND/OR HEALTH CARE PROXY third of the estate of the decedent. The surviving spouse retains rights to homestead allowance, exempt property and family Currently, Alabama law allows a competent adult to execute a liv- allowance, whether or not he or she takes an elective share. ing will (known as a “declaration”). The declaration may direct that Election must be made in writing and within six months of the pro- life-sustaining procedures be withheld or withdrawn for a patient bate of the will. (Code of Alabama 1975, Sections 43-8-70 et seq). with a terminal condition. “Life-sustaining” is defined as any med- ical procedure or intervention which serves only to prolong the dying process and where the attending physician has determined death will occur regardless of the use of such procedure. The dec- laration is only applicable to a patient who has been diagnosed * For additional discussion of this issue, see ACTEC Study 10, and certified to be terminally ill by two physicians. A patient is ter- “Surviving Spouse’s Right to Share in Deceased Spouse’s Estate” minally ill if death is imminent or his or her condition is deemed 1-2 © 1996 The American College of Trust and Estate Counsel December 1996 hopeless without the use of life-sustaining procedures. The dec- a) If at the time of the execution of the will the testator laration must be in writing and witnessed by two adults who are believes the child to be dead, the child receives a share as not related to the patient by blood or marriage and who are not if the testator had died intestate, or responsible for the patient’s care. At the present time, the with- b) In satisfying a share as stated above, devise is made by holding or withdrawal or artificially administered nutrition and the will abate as provided in A.S. 13.16.540 (A.S. hydration is not specifically addressed in the statute or caselaw 13.11.115). leaving a question as to the effect of the declaration on such pro- cedures. (Code of Alabama 1975, Section 22-8A-1 et. seq.). EFFECT OF TESTAMENTARY GIFT TO ATTESTING Health care proxies are not specifically authorized by statute. In WITNESSES addition, the durable power of attorney statute makes no refer- ence to health care decisions. However, the statute may be broad A will or any provision of one is not invalid because the will is enough to encompass such decisions if specifically authorized in signed by an interested person (A.S. 13.11.170). the document. (See Code of Alabama 1975, Section 26-1-2). LIMITATION, IF ANY, ON CHARITABLE BEQUEST None. C.L. Cloudy Ketchikan, Alaska ALASKA October 30, 1995 EFFECT OF LAPSED LEGACY Pursuant to A.S. 13.11.240, “If a devisee who is a grandparent or a lineal descendant of a grandparent of the testator is dead at AGE OF TESTATOR the time of execution of the will, fails to survive the testator, or is treated as if the devisee predeceased the testator, the issue of Real Estate Personal Property the deceased devisee who survive the testator by 120 hours 18 18 take in place of the deceased devisee and, if they are all of the same degree of kinship to the devisee, they take equally, but, if HOLOGRAPHIC (HANDWRITTEN, UNWITNESSED) of unequal degree, then those of more remote degree take by representation. A person who would have been a devisee under With or without attestation if in handwriting and signed by testa- a class gift if the person has survived the testator is treated as a tor. Admitted to probate same as other wills. (A.S. 13.11.160). devisee...whether the person’s death occurred before or after the execution of the will”. NUNCUPATIVE (ORAL) Except as provided in A.S. 13.11.240, if a devise other than a If made by mariners at sea or a soldier in military service, may residuary devise fails for any reason it becomes part of the dispose of personal property orally or by writing. If oral, the will residue. If the residue is devised to two or more persons and the must be proved within 6 months unless reduced to writing with- share of one of the residuary devisees fails for any reason, that in 30 days after the words were spoken.
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