A Last Will and Testament or a WILL is a legal document that communicates a person’s final wishes pertaining to assets and dependents. This last will and testament outlines what to do with possessions, whether the deceased will leave them to another person, a group or donate them to charity, and what happens to other things that they are responsible for, such as custody of dependents management of accounts and financial interests.
Why is it called a Last Will and Testament?
The term – Last Will and Testament comes from an old English law method, a doublet, of using English and French words for clarity or emphasis. Other examples are assault and battery, breaking and entering, peace and quiet.
Wills are ancient documents and practices. Israel gave blessing to the younger grandson, Ephraim, instead of Manasseh as was tradition at the time. Also, against tradition, he gave a greater portion to Joseph than his other sons. Genesis 48:21-22. A Will was also described in Hebrews 9:16 where it was stated that the testament had no effect until the death of the maker. It is the same today.
The current American tradition is to leave all to the spouse, then divide equally among children. Not too many years ago tradition bypassed a female spouse and divided property among children.
How does a Last Will and Testament Work?
A person writes a will while still alive and its instructions are only carried out once the individual dies. A will names a still-living person as the executor of the estate, and that person is responsible for administering the estate.
Once you the Testator dies, the probate court supervises the Executor to ensure that the wishes specified in the will are carried out.
A Last Will and Testament are typically the foundation of a comprehensive Estate Plan and is the key instrument used to ensure that the estate is settled in the manner desired by the deceased.
While there can be more to an estate plan than just a will, it is the presiding document the probate court uses to guide the process of settling an estate.
After your death the probate court and your executor will marshal any assets not already designated by a beneficiary. Life insurance policy or qualified retirement plan are typically NOT included as probate assets and pass directly to the beneficiaries unless the deceased failed to add a beneficiary to their policy prior to passing away.
Specifically, a will instructs the court in the disposition of all assets, including who is to receive them and in what amount. The will can also establish guardianship arrangements for surviving dependents and accounts for any special circumstances, which may include the care of a special-needs child or an aging parent.
A Will allows you to direct how your belongings—such as bank balances, property, or prized possessions—should be distributed. If you have a business or investments, your will can specify who will receive those assets and when.
The Will also allow you to direct assets to a charity (or charities) of your choice. Similarly, if you wish to leave assets to an institution or an organization, a will can assure that your wishes are carried out. Thus, a will requires one to identify those assets and property that are to be bequeathed and to whom.
A Will often designates an executor, a trusted individual whose main duty is to carry out the will’s instructions to manage the affairs and wishes of the deceased person’s estate.
Parents of minor children can furthermore designate a legal guardian to care for them if death is untimely.
· In Alabama for a will to be considered valid, it must be signed by an individual of sound mind and mentally capable. Many jurisdictions further require that the signing of a will be witnessed by at least two unrelated individuals, aged 18 or over.
· Wills must be written and signed by the testator, the one making the Will. In Alabama two witnesses are required. To make the Will self-proving, meaning the witness do not have to come to court and testify they witnessed the Will.
· A notary public is required to affirm the identity of the testator, witnesses, and oath of the testator.
In Alabama and many other states, you cannot omit a spouse. Alabama requires that one leave one-third to a spouse or the spouse can choose that much in an elective share. That sounds reasonable, but what if you die at 85 and your spouse is in or soon goes to the nursing home. That amount is now going to the nursing home. Children being supported by the deceased can claim a couple of exemptions amounting to $15,000 but may have to be shared with the surviving spouse. Other than those mentioned requirements you can leave your assets to anyone or any entity (charity or business) you choose.
Your Will should name an Executor or Personal Representative. This is the person in charge of doing what your Will says such as paying bills, selling property, distribution of assets and maybe other things.
The Executor may be exempted from the requirement of posting a bond. A bond is insurance, usually by an insurance company, that can be used to pay the heirs and beneficiaries if the executor steals or misuses the money. Bonds can be expensive and are routinely exempted in Wills.
The inventory filing requirement may also be waived. Other requirements cannot be waived. Those are discussed below in What is Probate?
A Will may and should contain provisions to create a trust called a testamentary trust for the protection of any heirs that are or become disabled, incompetent (supplemental needs trust) or are below age 25 or other age chosen by you (under stated age trust), at the time of your death. You choose the trustee to manage those funds and create rules for the distribution of those funds.
You can protect disabled beneficiaries by creating a Supplemental Needs Trust for them, which preserves assets for the family, while keeping their eligibility for public benefits.
If you chose to create a Will…
at your Death your Will must go through Probate –
using the courts to divide your property.
To probate a Will means to authenticate the document. Once authenticated the Judge of Probate gives power to the person named in the document as executor or personal representative.
This personal representative has the job of concluding the business of the deceased. The Probate Code gives the personal representative many powers and the Will can expand those even more.
This begins with a petition for Letters Testamentary. This is the document that evidences the power granted to the personal representative. The Letters are typically one page; the plural may refer to the fact that more than one original is provided because several may be required at places such as the bank, insurance companies, other financial institutions, etc.
The petition includes the original Will, a statement of jurisdiction (why it is being filed in this county), a brief description of the assets of the estate, a list of the next of kin who are required to receive notice that the Will is being filed for probate (authentication).
A Will is just like pages of a diary until the Judge of Probate gives authority. If possible, waivers are obtained from all the heirs who are required to receive notification and beneficiaries who are not related by blood.
The waiver is needed even if the blood-related heir does not receive anything in the Will. The waiver states the one signing agrees the Will is valid and has no objection to the person named to be the personal representative. If all heirs sign waivers, a hearing to prove the Will is not needed. If any heirs do not sign a waiver, a hearing is held to determine the authenticity of the document and if the person named is fit to serve as personal representative. Despite what is shown in movies, there is not a ‘reading’ of the Will. Only the portions naming the personal representative and the conditions under which he/she operates.
If the Will exempts the personal representative from providing bond, the letters are issued quickly. The bond is insurance in case the personal representative steals or misuses the money. If it does not explicitly waive the bond requirement, a bond must be obtained, then the Letters are issued (signed and sealed by the judge).
After the Letters are issued, the personal representative gathers the assets. Any bank or financial accounts that remain are collected and placed in an Estate Account. To open that account the PR must present the Letters and obtain a tax identification number for the estate. The PR also gathers other assets such as vehicles, household items, personal effects, firearms, etc. Any items not specifically bequeathed to someone is often sold and the money placed in the Estate Account. If the Will grants the power of sale to the PR, the PR can proceed without additional permission/authorization of the judge. If the power is not granted, a tedious process must be followed to be able to sell items.
When the Letters are issued, a notice must appear in a newspaper published in the county. That notice states the name of the deceased person and that any debts claimed against the deceased must be filed within six months or the debt cannot be collected. Any known creditors such as mortgages, credit cards, and medical providers must be provided written notice of the estate filing.
The six-month period is known as the claims period. Except in rare circumstances the only payments that can be made from estate money are expenses of administration (filing fees, publication fees, bond, and attorney fees), other regular bills such as utilities, and mortgage payments, and certain exemptions and family allowances.
After the six-month claim period has expired, the claims are paid or disputed. Disputed claims go to hearing to determine their validity. After the claims are concluded, then bequests can be paid, or items distributed. If all heirs and beneficiaries sign a waiver, again, that he/she is satisfied with the administration of the estate, and what was paid or given to him/her was correct, the estate can be concluded without a hearing. If someone objects or cannot be found, a hearing must be held to determine if all heirs and beneficiaries were properly paid.
The Probate of a Will requires at a minimum seven months or longer. Without a properly drafted Last Will and Testament (not one that was Googled) the lengthy process can become longer, more tedious, and more expensive. Be sure to have a Will created that matches the needs of your family.
The State of Alabama provides an estate plan for everyone. It is a one size, and it fits everyone. Fits everyone? Not really.
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