For most older Alabamians the plan is four documents: a will, a durable power of attorney, an advance directive for health care, and the right deeds and beneficiary designations.
The power of attorney and the advance directive are the ones that matter while you are alive — and they are the ones you cannot sign once you have lost capacity. That is the whole reason for doing this early.
1. The will
Alabama’s requirements are in Ala. Code § 43-8-131: in writing, signed by the testator, and signed by at least two witnesses. Notarization is not required for validity.
Two clauses earn their place in nearly every Alabama will:
- A bond waiver. Section 43-2-851(c) lets a testator exempt the personal representative from giving bond by express provision. Without it the estate pays a bond premium.
- A self-proving affidavit. Under § 43-8-132, a self-proved will is probated without further proof and compliance with the signature requirements is conclusively presumed. Nobody has to find your witnesses fifteen years later.
There is no holographic will provision in Alabama’s execution statutes. A will written entirely in your own hand and signed, but not witnessed by two people, is not valid if executed here. Section 43-8-135 can save one validly executed under another state’s law.
Ala. Code §§ 43-8-131, 43-8-135.2. The durable power of attorney
Alabama adopted the Uniform Power of Attorney Act in 2011, codified at Ala. Code § 26-1A-101 and following.
Two things about it are worth knowing:
- It is durable by default. Section 26-1A-104: “A power of attorney to which this chapter applies is durable, unless it expressly provides that it is terminated by the incapacity of the principal.” The old worry about needing magic durability language is gone.
- Execution is simple, but get it acknowledged. Section 26-1A-105 requires the principal’s signature, or another person signing the principal’s name in the principal’s conscious presence at their direction. It then provides that a signature “is presumed to be genuine if the principal acknowledges the signature before a notary public or other individual authorized by law to take acknowledgments.” Notarize it. Banks and title companies will ask.
A will does nothing until you die. A power of attorney does its work while you are alive and unable to act. Without one, a family facing a stroke or a dementia diagnosis usually ends up petitioning the probate court for a conservatorship — a public proceeding, with a hearing, ongoing court supervision and an accounting.
That is the outcome a two-page document signed in advance avoids.
Ala. Code §§ 26-1A-104, 26-1A-105.Nothing in place yet?
The four documents are a single appointment for most families. Call the Athens office and we will tell you what you actually need — and what you do not.
3. The advance directive for health care
Alabama’s Natural Death Act sets out a combined form at Ala. Code § 22-8A-4. It is one document that does two jobs: the living will (your instructions about life-sustaining treatment) and the health care proxy (the person who decides for you).
| Requirement | Detail |
|---|---|
| Witnesses | Two or more, each at least 19 years of age |
| Who cannot witness | The person who signed on the declarant’s behalf; the designated health care proxy; anyone related by blood, adoption or marriage; anyone entitled to a portion of the estate; anyone directly financially responsible for the declarant’s medical care |
| Notarization | Not required by the statute |
| Form | The statute provides a form the directive shall be “substantially in” |
Note the witness disqualifications carefully. The most common error we see is a well-meaning adult child witnessing a parent’s directive — a relative, and usually a beneficiary. Use two neutral witnesses.
4. Deeds and beneficiary designations
This is the part people skip, and it overrides everything above.
- Beneficiary designations control. Life insurance, 401(k)s, IRAs and payable-on-death accounts pass by contract to whoever is named, regardless of what the will says. An out-of-date designation naming a former spouse is discovered after the only person who could change it has died.
- How the deed reads decides what happens to the house. Survivorship language, tenancy in common, life estates — these are not interchangeable, and the difference determines whether the property goes through probate at all.
- Recording matters. Under § 35-4-50 conveyances are recorded with the judge of probate; under § 35-4-90 an unrecorded conveyance is void as to later purchasers, mortgagees and judgment creditors without notice.
When court involvement is unavoidable
Sometimes planning did not happen, or capacity is already gone. Alabama probate courts have original and general jurisdiction under § 12-13-1(b) over the appointment and removal of guardians for minors and persons of unsound mind, and over controversies about the right of guardianship and the settlement of guardians’ accounts.
It works. It is simply slower, more public and more expensive than a document signed in advance would have been.
What we do and what we do not
Rule 7.4 of the Alabama Rules of Professional Conduct permits a lawyer to state the fields in which they do and do not practise. So plainly:
- We handle: wills, trusts, durable powers of attorney, advance directives, deeds, estate administration and probate, guardianship and conservatorship.
- We do not handle: Social Security or disability claims, or Medicare appeals. If that is what you need, we will tell you rather than take the file.
Long-term care planning is its own field with its own rules, look-back periods and consequences. If your situation involves nursing home placement or Medicaid eligibility, ask specifically about it at the outset so you are pointed at the right person — whether that is us or someone else.
Say so on the first call. It saves everyone time.Common questions from Alabama families planning ahead
What is the difference between a power of attorney and an advance directive in Alabama?
A durable power of attorney under Ala. Code § 26-1A-101 et seq. covers financial and legal decisions — banking, property, taxes. An advance directive under § 22-8A-4 covers health care decisions and life-sustaining treatment. You need both; neither substitutes for the other.
Does an Alabama power of attorney have to be notarized?
Section 26-1A-105 requires the principal’s signature. It then provides that the signature is presumed genuine if acknowledged before a notary public or other person authorized to take acknowledgments. Notarize it — banks and title companies will expect it, and an unacknowledged POA invites argument.
Can my daughter witness my Alabama advance directive?
No. Section 22-8A-4 disqualifies anyone related by blood, adoption or marriage, anyone entitled to a portion of the estate, the designated health care proxy, and anyone directly financially responsible for your medical care. Use two neutral witnesses aged at least 19.
What happens if my parent has already lost capacity?
They can no longer sign a power of attorney — capacity is required. The route then is usually a guardianship or conservatorship petition in probate court, which the court has jurisdiction over under § 12-13-1(b). It is workable, but slower and more expensive than planning would have been.
Does a power of attorney let someone change my will?
No. A power of attorney is an agency document for decisions made on your behalf while you are alive. It does not permit the agent to make or alter your will. Note also that certain powers require an express grant in the document rather than being implied — which is why the drafting matters.
Do I need a trust, or is a will enough?
For many Alabama families a well-drafted will plus correct deeds and beneficiary designations does most of what a trust would, for less. A trust earns its cost where there is out-of-state real property, a beneficiary who should not receive money outright, a blended family, or a specific need for privacy.
Four documents, one appointment
Most families walk out with everything they need in a single visit. We do this work for families across Limestone, Madison, Morgan, Lauderdale, Colbert, Franklin and Lawrence Counties.
Daniel Shawn Pickens
Attorney at Daniel S. Pickens Law in Athens, Alabama. The firm handles estate planning, probate, real estate closings and title work, deeds, business formation and contracts for families and businesses across Limestone, Madison, Morgan, Lauderdale, Colbert, Franklin and Lawrence Counties.
Questions about estate planning or probate? Email estateplanning@dsp.law or call 256-434-1678.
Daniel S. Pickens Law · 300 West Green Street, Athens, Alabama 35611
