Do I need a Last Will and Testament?
The most common question I am asked by friends and acquaintances is “Do I really need a Will?” I am a strong believer that all people need a Last Will and Testament. It does not matter how much money you make, whether you own any real estate, or how many things you own. It is your last chance to leave your earthly possessions to your family members, friends, or charities. A Will removes any confusion among family members of who you wanted to have what, how much you wanted each person to have, and which friend gets your prized set of golf clubs.
A Last Will and Testament (“Will”) is a written document that provides the manner in which a person’s property will be distributed when he/she dies. A person who dies after writing a Will is said to have died testate. If a person does not have a Will, the deceased person is described as having died intestate. Different laws in Alabama apply to testate estates and intestate estates. Writing a Will is not difficult for individuals, and the benefits to your family are immeasurable.
If you are at least 18-years-old and of sound mind, you may write a Will. A Will must be in writing, must be signed by the maker, and must be witnessed by two (2) people per Alabama law. A Will should be written while the maker is in good health, is mentally stable, and free from any emotional distress. You cannot “help” a family member write a will while on their death bed, leaving you everything in his/her estate. This practice will certainly lead you into court fighting with other family members. If a family member is diagnosed with a terminal illness, it is a better practice to take that family member to an attorney to discuss how he/she wants to handle their estate upon death.
What if I don’t have a Will?
If you do not have a Will and you die, your estate will be administered under Alabama law. There are strict rules about the distribution of your estate. If you have a spouse, children, stepchildren, parents, siblings, nieces and nephews, your estate is distributed in a pre-determined formula to those you leave behind. Depending on what your family tree looks like, your estate can be distributed to distant family members you may not even speak to or know much about. If you are re-married and have children from a previous marriage, your estate can be distributed to your second spouse, leaving a lesser share to your children than you anticipated leaving them. A Will allows you to state specifically what you want to leave to those who mean the most to you in your lifetime.
Where should I keep my Will?
Once you draft and sign your Will, keep your Will in a safe place in your home. Many people place their original Will in a safety deposit box. Upon your death and the need to file your original Will into probate court, no one can get your Will if it is locked in a safety deposit box. If you keep your Will in your home in a fireproof safe, upon your death, a family member can take possession of the original Will and begin probating your Estate. I always recommend that my clients also give a copy of the Will to a trusted family member.
Can I change my Will after it is signed?
After you draft a Will, you should review your Will once per year. You can select a date that is significant to you as a reminder to review your Will such as a birthday, anniversary, etc. If you decide there are changes you need to make, contact the attorney who drafted your Will to assist you with making these changes. If you wish to use a new attorney, provide the new attorney with a copy of your Will so the new attorney can have a better picture of how your Will was structured and can advise you on your requested changes. If you annually review your Will and do not need to make any changes, your Will does not expire. It is not necessary to rewrite your Will just because of the date of your Will.
Are the terms of my Will affected by a wrongful death lawsuit?
Riley & Jackson has worked with numerous families whose loved one has been killed by the wrongful acts of another. In Alabama, wrongful death proceeds are distributed as if the person who died did not have a Will, even if he/she did. This is a rare occurrence, however, so we recommend that all adults have a valid Will.< back