Frequently Asked Questions
ESTATES
General Questions About Wills
WHAT IS A WILL?
A will is a
document that provides the manner in which a person's property will be
distributed when he dies. A person who dies after writing a Will is said
to have died testate.
WHO MAY MAKE A WILL?
In Alabama,
the maker of a Will must be: (1) be at least 18 years old; (2) of sound
mind; and (3) free from improper influences by other people.
HOW DO I MAKE A WILL?
A Will must
meet certain requirements set by the State to be considered valid. The
Will must be written, signed by the maker, and witnessed by two (2)
people in the manner required by the law.
MAY I DISPOSE OF MY PROPERTY IN ANY WAY I DESIRE BY MAKING A
WILL?
Almost, but not quite. There are some limitations set by law to avoid
placing hardships on the people who survive the deceased. For example, a
married person cannot completely exclude the other spouse from sharing
in the estate. A lawyer can best explain all of the limitations.
HOW DO I KNOW IF I NEED TO WRITE A WILL?
Any amount of property which you own constitutes your estate. Generally,
the size of your estate and your family circumstances determine whether
you need a Will. An estate does not have to be any particular size to
justify a Will. If you have young children, or property which you would
like to assure will be given to certain people, then you should consider
writing a Will.
WHEN DO I NEED TO WRITE A WILL?
A Will should be written while the maker is in good health and free from
any emotional distress. A prudent person does not wait for a catastrophe
or other compelling reason to make a decision.
WHO MAY DRAFT A WILL?
There is no requirement that a person consult a lawyer before drafting
their own will. However, the proper drafting of a Will can be a delicate
operation, and it is best to consult someone who has experience. A
lawyer can make sure that your Will is legal, and that your property
will be given to the people that you intended. A lawyer can also help
construct a Will so that your family saves money in administering the
estate, and reduces their taxes.
IS A WILL EXPENSIVE?
A lawyer will usually charge for a Will according to the time spent in
preparing the Will. If you have a small estate and a simple plan for
distributing your property, then your Will should cost less than one for
a large, complex estate with several people receiving property.
MAY A WILL BE CHANGED ONCE IT IS WRITTEN?
A person
may change his Will as often as he desires. However, the changes must
meet the same requirements listed above for the original Will. No change
should be made without first consulting the person who drafted the Will.
HOW LONG IS MY WILL "GOOD"?
A properly
written and executed Will is "good" until it is changed or revoked.
Writing a second Will usually revokes the first Will. However, if there
is a change in your estate or your family makeup, you may consider
changing your existing Will or writing a new Will. For example, if you
sell your house you may need to change your Will to reflect the change
in your estate.
WHAT SHOULD I DO WITH MY WILL ONCE IT IS WRITTEN?
Once you have written your Will, you should keep it in a safe place,
such as a safety deposit box at a bank. You should also let your family
know where the Will is so that they can find it when you die.
PROBATE OF WILLS
WHAT DOES PROBATE OF A WILL MEAN?
Probate of
a Will is the administration of an estate to insure that all of the
property is disposed of properly. It is the Probate Judge's
responsibility to make sure that all of the laws in
Alabama
regarding the distribution of estates are followed.
WHO SHOULD PROBATE A WILL?
Upon the
person's death, anyone named in the Will either as personal
representative or as a recipient of property, or any other person with a
financial interest in the estate, or the person who has possession of
the Will may have the Will proved before the proper Probate Court. Any
person in possession of the Will must, by Alabama law, deliver the
Will to the Probate Court or to a person who is able to have the Will
probated. A person in possession of the Will can be required to produce
it.
WHERE SHOULD A WILL BE PROBATED?
Generally, Wills must be filed for probate in the county where the
deceased lived.
WHEN MUST A WILL BE FILED FOR PROBATE?
To be
effective, a Will must be filed for probate within five years of the
date of the testator's death.
DO I HAVE TO HAVE A LAWYER?
The
complexity of handling estates normally necessitate having an attorney
since the Probate Judge cannot advise you of the law or provide you with
forms.
DO I NEED TO PROBATE THE WILL?
Yes, the
Will must be probated to have legal effect. Before deciding not to
probate a Will one should consult an attorney.
ADMINISTRATION OF AN INTESTATE ESTATE
WHAT HAPPENS TO MY PROPERTY IF I DO NOT WRITE A WILL?
If someone
dies without writing a Will, they have died intestate. Each state has
specific laws governing the distribution of property when a person dies
intestate, and most laws are generally the same. The laws of
Alabama
are shown below, but you should remember that these laws may not apply
if the deceased was not a resident of
Alabama, or if the property is located in
another state. In this list, "issue" means all of the people who have
descended from the decedent. This includes children (both natural and
adopted), grandchildren (both natural and adopted), great grandchildren,
and so on.
Property going to
the surviving spouse:
entire estate
if no surviving issue or parents of decedent;
first $100,000, plus of balance of estate if there is no surviving
issue but there is surviving parent(s);
first $50,000, plus of balance of estate if there are surviving
issue all of whom are also issue of surviving spouse; or
of estate if there are surviving issue who are not issue of the
surviving spouse.
Property not going
to surviving spouse:
If there is no surviving spouse, or there is property left after the
spouse receives his or her share, it passes under the following
priority: All of the property passes to the issue, unless there are
none. If none, all passes to the parents. If neither parent is living,
the estate passes to siblings, and so on under this priority:
issue
parents
brothers and sisters
grandparents
aunts and uncles
cousins
STEPS IN PROBATE OF AN ESTATE:
File
petition
Take immediate control of the estate
Inventory of the estate within 2 months
Bond
Notice must be given to all heirs
Letters of Testamentary granted
Notice to file claims must be published and individual notice given to
anyone known to have a claim against the deceased
Claims must be filed generally within 6 months
Generally the estate cannot be divided until all claims and expenses
have been paid which is at least six months
Court must approve administrator's fees
GUARDIANS AND CONSERVATORSHIPS
WHAT IS A CONSERVATOR AND A WARD?
A
conservator is a person who is appointed by the court to manage the
property of a minor or incapacitated person. A ward is the legal name
for a person for whom a guardian has been appointed.
WHO IS AN INCAPACITATED PERSON?
A person who is unable to manage property and business affairs because
of: mental illness, mental deficiency, physical illness, infirmities
accompanying confinement, detention by foreign power or disappearance.
WHEN CAN A CONSERVATOR BE APPOINTED?
A conservator may be appointed when an incapacitated person is unable to
manage property and business affairs, and (a) has property that will be
wasted without proper management or (b) funds are needed to support the
incapacitated person or one entitled to support from the incapacitated
person.
WHAT IS THE DIFFERENCE BETWEEN A GUARDIAN AND A CONSERVATOR?
The
guardian looks after the person and their welfare while a conservator
look after their estate.
WHAT IS A GUARDIAN?
The parent
of a minor or someone who has been appointed by the court to be
responsible for the personal care of an individual.
CAN A PARENT OR SPOUSE APPOINT A GUARDIAN?
Yes, in a
Will a parent may appoint a guardian for a minor child or for an
unmarried incapacitated child. A person may appoint a guardian for his
or her incapacitated spouse in a Will.
ADOPTION
WHAT IS AN ADOPTION?
Adoption is
the legal procedure through which a minor is recognized by law as being
the son or daughter of the adopting adult(s) and as having all of the
rights and duties of such relationship including the right of
inheritance. The adoptee takes the name designated by the petitioner.
WHO MAY ADOPT?
Any person
who is 19 or older. The Adoption Code specifically prohibits
discrimination in granting adoptions on the basis of marital status or
age.
WHO CAN BE ADOPTED?
A minor,
defined as being a person under the age of nineteen.
WHAT STEPS ARE USUALLY INVOLVED IN AN ADOPTION?
Preplacement investigation.
All necessary consents and/or relinquishments concerning the adoption
are obtained.
Guardian ad litem is appointed when either natural parent of the adoptee
is a minor or in case of a contested hearing.
Petition court for authority to pay fees or expenses.
Placement of child with petitioners.
File petition for adoption 30 days after placement.
Serve notice or obtain waiver of notice on or from all parties entitled
to notice of the adoption.
Post placement investigation.
Hearings.
Affidavits of non-payment.
Accounting of disbursements.
WHAT IS A PRE-PLACEMENT INVESTIGATION?
It is an investigation conducted for the purpose of determining the
suitability of each petitioner and the home in which the adoptee will be
placed. The investigation will include a criminal background search and
will focus on any other circumstances relevant to the placement of the
adoptee.
IS IT ALWAYS NECESSARY TO HAVE A PRE-PLACEMENT INVESTIGATION?
Yes, unless
the persons seeking to adopt is a close relative of the adoptee as
listed in 26-10A-27; 26-10A-28 of the Code of Alabama.
WHOSE CONSENT TO THE ADOPTION IS REQUIRED?
The adoptee, if 14 years or older unless mentally incapable of giving
consent.
The adoptee's mother.
The adoptee's presumed father if he meets the requirements set out in
26-10A-7(c) of the Code of Alabama.
The agency to whom the adoptee has been relinquished or which holds
permanent custody except that a court may grant an adoption without the
agency's consent when it would be in the child's best interest and the
agency's withholding of consent is unreasonable.
The putative father if known; provided that he responds within 30 days
after receiving notice of the adoption.
CAN A MINOR CONSENT TO THE ADOPTION OF HIS OR HER CHILD?
Yes,
however prior to such consent the court must appoint the minor parent a
guardian ad litem to represent the minor's interests. A minor who is 14
years of age or older can nominate a guardian ad litem to protect his or
her interests.
CAN A PERSON REVOKE A CONSENT TO ADOPTION EXECUTED BY HIM OR HER
DUE TO THE FACT THAT AT THE TIME CONSENT WAS GIVEN THAT PERSON WAS A
MINOR?
No, a consent or relinquishment executed by a parent who is a minor
shall not be subject to revocation by reason of such minority.
WHEN, WHERE AND IN WHAT FORM MUST A CONSENT OR RELINQUISHMENT FOR
ADOPTION BE GIVEN?
A consent
or relinquishment for adoption may be given at any time. The prebirth
consent of the mother must be signed or confirmed before a probate
judge. All other prebirth or post-birth consent or relinquishments must
be signed or confirmed before the Probate Judge or clerk of the Probate
Court, or someone appointed by that court to do such, a person appointed
by the agency conducting the investigation or a notary public. The
consent or relinquishment must be in substantially the same form as
provided in the adoption code and must be in writing and signed by the
person consenting or relinquishing.
WHEN MAY A CONSENT OR RELINQUISHMENT BE WITHDRAWN?
A consent
or relinquishment may be withdrawn for any reason five days after the
birth of the adoptee or five days after the signing of the consent or
relinquishment whichever occurs later. The time to withdraw the consent
or relinquishment can be expanded to 14 days if the court finds that
such a delay is reasonable under the circumstances and is in the best
interest of the child.
WHERE IS A PETITION FOR ADOPTION FILED?
A petition
for adoption may be filed in the probate court of any of the following
counties: where the minor resides; where the petitioner resides or is in
military service, or where the office of the agency or institution
having guardianship or custody of the minor is located.
WHEN IS A PETITION FOR ADOPTION FILED?
The
adoption petition must be filed within 30 days after the minor is placed
with the prospective adoption parent(s) for adoption. If the person
seeking the adoption is a stepparent or relative of the adoptee then the
adoptee must reside with the petitioner for al year before such petition
is filed. If the child has not lived with the stepparent of relative for
a year, the adoption will proceed in the same manner as all other
adoptions unless the court waives the residence requirement.
CAN I PAY THE PARENT OF A MINOR OR UNBORN CHILD FOR THE CHILD?
No! An offer to make such payment is a Class A misdemeanor, to receive
payment for a person's consent to adoption is a class C felony.
WHAT EXPENSES CAN I PAY?
A person seeking to adopt a child may pay maternity connected medical or
hospital and necessary living expenses of the mother preceding birth and
during pregnancy and during pregnancy related incapacity as long as such
payments are made as an act of charity and such payment is not
contingent upon placement of the child for adoption. All fees and
expenses, including legal, medical, investigative, or other legitimate
professional fees may only be paid with court approval.
HOW CONFIDENTIAL IS AN ADOPTION?
The adoption code was designed to keep an adoption as confidential as
possible.
Before a final adoption
decree is rendered the only people with access to the adoption records
are: the petitioner, the petitioner's attorney; the preplacement
investigator, and any attorney appointed or retained by the minor being
adopted. No other person has access to the adoption records unless they
obtain a court order after showing good cause to allow then to inspect
records.
All adoption hearings are confidential and held in closed court open
only to the interested parties and their counsel, except with leave of
the court.
After the final decree of adoption is entered all documents pertaining
to the adoption are sealed and identifying information cannot be
obtained by anyone except the adoptee under limited circumstances. (see
below).
The natural parent(s) may consent in writing under oath to disclosure of
identifying information to the adoptee when such adoptee reaches the age
of 19. The adoptee upon reaching the age of 19 may petition the court
for disclosure of identifying information. Such information will not be
released to the adoptee without the natural parent consent unless the
court determines it is best after weighting the interests of the parties
involved.
WHAT IS THE DIFFERENCE BETWEEN AN ADOPTION BY A STEPPARENT OR A
CLOSE FAMILY MEMBER AND OTHER ADOPTIONS?
There is
usually a lot less formality and requirements when the adoptee is being
adopted by a stepparent or close family member.
Unlike all other adoptions, usually no preplacement or postplacement
investigation nor accounting of the cost relating to the adoption are
required.
In order to be
exempt from these requirements, the adoptee must have lived with the
petitioner for at least one year.
CAN GRANDPARENTS OBTAIN VISITATION RIGHTS TO SEE THE ADOPTEE
AFTER THE ADOPTION?
Ordinarily the grandparents have no visitation rights with their
grandchildren when the natural parents' rights have been terminated by
adoption. However, at the court's discretion the court may allow such
visitation rights if the child is adopted by a close relative or a
stepparent provided it is in the child's best interests.
DEEDS AND RECORDS
MAINTAINING RECORDS
The Probate
Judge is required to preserve all documents, files, papers, and orders,
together with all attachments required by law to be recorded and filed
in his office. These records must be kept in a manner to permit
convenient reference.
The following records when executed in accordance with law shall be
admitted to record in the office of the Probate Judge: (1) Plats or
maps; (2) Judgments and liens; (3) Deeds, mortgages, deeds of trust,
bills of sale, contracts or other documents purporting to convey any
right, title, easement, or interest in any real estate or personal
property, all assignments of mortgages; (4) Petitions, decrees, or
orders of bankruptcy; (5) Corporations and other forms of business
organizations; (6) Lis pendens; (7) Marriage license and military
discharges; (8) Documents and instruments concerning condominiums; (9)
Mortgages on personal property.
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