Succession Without a Will in Alabama
When a person passes away without a Last Will and Testament in Alabama, his or her estate will be distributed according to the laws of intestate succession. Intestate succession is the process by which the laws of the state determine who inherits the property of a person who passed away without a valid Will in place to specifically designate his or her heirs. In other words, it is how the State determines who will inherit property when someone dies without a Last Will and Testament in place.
This analysis begins from the date of death, and priorities must be given in the following order (in essence, it first looks at surviving spouse, then children, and then parents, etc.:)
Surviving Spouse, Children and Their Descendants
(1) if the decedent is survived by a spouse and children (a or b below), the spouse inherits:
a. all of the net estate if there are no surviving children or grandchildren of the decedent (the grandchildren might be through the decedent’s siblings, in which case it is called "per stirpes"; or
b. one-fourth (1/4th) of the net estate if there are surviving children or grandchildren of the decedent (the grandchildren might be through the decedent’s siblings, in which case it is called "per stirpes"); and
(2) if the decedent is survived by a spouse and no children or grandchildren, but there are surviving parents (a or b below), the spouse inherits:
a. one-half (1/2) of the net estate if the decedent’s parents are both living; or
b. all of the net estate if only one (1) parent of the decedent is living.
(3) if the decedent is survived by children and grandchildren (the grandchildren might be through the decedent’s siblings , in which case it is called "per stirpes") of the decedent, but there is no surviving spouse, the children inherit per stirpes:
(4) if the decedent is survived by parents (the children might be through the decedent’s siblings, in which case it is called "per stirpes") of the decedent, but there is no surviving spouse, the parents inherit per stirpes:
Surviving Siblings and their Descendants
(5) if there is no surviving spouse, children, grandchildren (the grandchildren might be through the decedent’s siblings, in which case it is called "per stirpes") or parents of the decedent, the decedent’s brothers and sisters and the children of deceased brothers and sisters inherit:
Absent any of the above categories, the next in line for inheritance are:
(6) if there is no surviving spouse, children, grandchildren (the grandchildren might be through the decedent’s siblings, in which case it is called "per stirpes") or parents of the decedent, or brothers and sisters of the decedent and the children of deceased brothers and sisters of the decedent, the decedent’s grandparents of the decedent and children of the decedent’s grandparents inherit:
If there are no surviving family members at all, the last category:
(7) if there is no surviving spouse, children, grandchildren (the grandchildren might be through the decedent’s siblings, in which case it is called "per stirpes") or parents of the decedent, or brothers and sisters of the decedent and the children of deceased brothers and sisters of the decedent, or grandparents of the decedent and children of the decedent’s grandparents, the decedent’s aunts and uncles are entitled to inherit.
Who Receives an Inheritance under Alabama Law When Someone Dies Without a Will?
If a decedent (the preferred term over "decedent person") dies without a will, a close relative will stand up and ask to serve as the decedent’s personal representative. The spouse or children, absent disqualification, will be the first to petition the court to serve in that capacity. The family will also turn to the appointed personal representative for guidance and assistance in administering the estate. This scenario is murky when the decedent has no spouse and no children. After all, what does Alabama’s statue say in this situation? Just like everything else involving Alabama wills and estates, this issue is either clear as mud or 8 sips of vodka away from being clear.
In the scenario where the decedent passes without a will, with no spouse and no children, the decedent’s parents have the exclusive right to serve as personal representative. Ala. Code § 43-2-42(a). Nowhere in the statute does it say that the decedent’s parents will inherit, but it does not take any great feats of reasoning to conclude that if the personal representatives are given priority over all others, then they probably (90%+ chance) will get the loot too. And, since the statute says that "The surviving parents of the decedent shall take the entire intestate estate", you should count the swag.
Still with me? We haven’t even scratched the surface. Let’s say that Grandma and Grandpa didn’t like you, and instead disinherited you from their estate plan. Instead, they gave everything to Uncle Bob, Aunt Sally, Cousin Charlie, and Nephew Jimmy (in that order of priority). Uncle Bob and Aunt Sally die, and Cousin Charlie also mouths off "I hate Clemons Law, PLLC and I hope they never win a case." Assuming the grandparents die without a will, the assets passes to nephew Jimmy, even though cousins Charlie and Stan, along with Aunt Sally, also wanted the money. Ala. Code § 43-8-102(d).
What about the aunts, uncles, cousins, and half-cousins? Well, they certainly have a chance of getting a piece of the pie, but they must wait their turn in line first. So if someone contemporaneously or previously died, that would bump them back in the queue. Let’s go through all of the relatives for clarity sake. Ala. Code § 43-8-103.
(1) If the decedent was survived by a spouse, all to the spouse;
(2) If the decedent was survived by no spouse but:
(i) No descendants; all to the decedent’s parents equally;
(ii) One or more descendants but no parents, to the issue of the decedent’s parents equally;
(iii) One or more parents but no descendants, all to the parents equally;
(iv) All parents but one, to the surviving parent; or
(v) Parents and issue, to the surviving parent or equally to surviving parents and the issue of each of the parents;
(3) If the decedent left no spouse, no descendants and no parents, or the surviving parents are also the decedent’s parents, to the heirs other than the surviving parents as determined under the law of intestate succession as it existed before the adoption changes of Act 86-392.
(Ala. Code § 43-8-103, 1984, Ala. Acts, No. 86-392, p. 561, § 1; Amended and Revised Act 2012-362, Ala. Acts 2012, ch. 362, § 1)
The Functioning of the Probate Court
Probate courts in Alabama are state-operated courts which oversee the distribution of a deceased person’s estate. This process is handled by first filing the will for probate and then distributing the assets according to the terms and conditions specified therein, or in the absence of a will, based on Johston County law. Because Alabama law dictates the distribution of a person’s estate when they die without a will, the probate court plays a semi-jurisdictional role in ensuring all properly titled property is distributed according to law or according to the provisions set forth in a person’s will. In order to open an estate, it is first necessary for the personal representative (also called an executor) to file a petition for administration (or a will for probate) in the appropriate probate court. The petition for administration lists all property owned by the deceased at the time of death (both in Alabama and out of state), the name and address of all heirs, and the person nominated as the personal representative. If the value of the property is greater in the state of Alabama than the total dollar amount of all debts, the estate will likely be administered through a summary procedure whereby an affidavit is filed after the lapse of six months from the date of first publication of the administration. If the estate exceeds this threshold amount, the estate must be opened for administration.
Once the estate is opened for administration, the personal representative must notify all heirs and creditors within a reasonable amount of time. Heirs and creditors have a period of up to six months from the first date of publication to submit claims against the estate. It is important to know, however, that claims submitted after the expiration of the six-month period are generally barred from collection against the estate unless they fall into limited exception categories (e.g., certain tax claims). Therefore, if you are an heir of a deceased person in Alabama, you will need to pay careful attention to the probate documents published in your local newspaper. Anyone who has an interest in the estate of a deceased person should be sure to consult with an experienced Alabama probate attorney to protect his or her own interests.
Frequent Problems That May Arise in an Intestate Case
Disputes among heirs are the most frequently contested issues relating to an intestate succession. This is especially true of cases involving a blended family, unequal distribution of property among siblings, or a relative of the decedent that was not properly provided for during the decedent’s lifetime. The attorney handling the case will seek to find a resolution by negotiating with the other heirs. Reaching an amicable solution without litigation is the most favorable outcome for everyone.
The second most common contested issue also relates to an attempt by an heir or beneficiary to be reimbursed for the costs or expenses of administering the estate or repairing, maintaining or "improving" the property of the decedent’s estate. Under Alabama law, the only individuals entitled to compensation for activities that benefit the decedent’s estate are the Personal Representative and those that hold a written contract with the decedent establishing a valid debt or obligation . Litigation may be necessary if a party such as a family member of the decedent files suit seeking to recover money spent.
A third area that is frequently contested and is much more costly to litigate relates to the proper inventorying of the property of the decedent’s estate. The law requires that the Personal Representative file an inventory listing all of the property owned by the decedent. This inventory must contain values for all of the property listed. An improper inventory may be challenged by an heir or beneficiary who asserts that items may have been missed or left off of the list by the Personal Representative or that the Personal Representative undervalued certain pieces of property. The sanctions available under the law for this can include removal of the Personal Representative and/or the imposition of a surcharge for any losses suffered by the estate.
Actions to Take After Someone’s Death Without a Will in Alabama
If you believe your deceased loved one who resided in Alabama did not have a Will, then the first step of course is to find out for sure. To find out if there is a Will is as simple as checking online in the Alabama probate records. Every Will is filed with the probate court as soon as the person passes away and you can view the Wills for free. You can search the digital files of the Alabama probate courts on-line at alacourt.com. Each county has a different website, but you can go to the main Alabama website here and then navigate to your county’s website. When searching the wills, search for the name of the deceased person. (NOTE: If a person has passed away and is not listed on alacourt.com, then the person probably had a probate case in another state or country or the person did not have any property or assets subject to a probate case.)
If you cannot find a Will, then the next step is for you to file an estate case in the Alabama probate court. You will file a petition or motion that asks a probate judge to appoint a Personal Representative to open an estate for the decedent. (NOTE: In Alabama, the term "Executor" is typically a man and "Executrix" is normally a woman. The more modern term is "Personal Representative" for both men and women, but it is important nonetheless to read the statute to be sure you are following the right set of rules.)
Alabama law gives the surviving family members the right to "preference" on the appointment of the Personal Representative. The list of persons having preference and the rules of preference is contained in the Code of Alabama at Section 43-2-41. Most of the time family members will agree and whoever wants to serve as Personal Representative will probably get his or her wish. However, sometimes family members will disagree. For example, let’s say Dad passes away with no Will and he has several grown children and one of the children does not get along with the other siblings. If this child files to be the Personal Representative, then the other siblings will likely object. If an objection is filed, the Judge will have to conduct a hearing and determine whether the objecting sibling has good cause to be excluded from the position of executor. As an aside, this is one reason why having a Will naming an Executor is so important. A Will saves your family lots of time and money by taking the issue of who serves as Personal Representative off the table.
A Personal Representative has specific duties under Alabama law, such as using "reasonable caution," "exercising reasonable prudence," and "managing the estate as a prudent person would." The list of duties of a Personal Representative is too long to list on this blog, but you can review the entire statute (Code of Alabama Section 43-2-843). The short version is that the Personal Representative has to carefully manage the estate, pay the debts of the estate, and make distributions to the heirs. A Personal Representative is entitled to receive a fee for his or her work serving as Personal Representative of the estate.
You are not required to hire an attorney to open an estate nor can you be required to hire a lawyer. However, if the estate has significant assets or income, or if the estate involves litigation, then having an experienced probate lawyer on your side may be smart. Even if you start to open the estate on your own, you will eventually need a lawyer once the estate is open.
Avoiding the Need to Pass Through Intestacy When Doing Estate Planning
To prevent the situation of dying intestate, a person needs an estate plan. The estate plan consists of a will and any codicils (amendments) to the will. A will must be approved by the probate court to be valid. The importance of comprehensive estate planning cannot be understated. In fact, if you plan to setup a trust, you must have a will. Even if you have a large estate, you should consider having a will. The courts strongly favor probating wills.
A will can be revoked at any time. You can destroy, burn, tear or cancel it. The physical destruction must be intentional and the common law says that the destruction of an unrevoked will indicates intent to revoke . You can also make a codicil. A codicil is often a sentence or two but can be more. It makes changes to a will. You must sign a codicil the same way you sign a will.
A person who does not already have a valid estate plan needs to work with a lawyer to prepare this document. However, if there is already a valid estate plan in place, you may not need a lawyer to prepare your codicil. A codicil must be signed by the testator and by two subscribing witnesses. It must state: "I hereby republish and declare this instrument to be my codicil and will."
