Estate Planning in Alabama
A complete Alabama estate plan is usually four documents, not one: a will, a durable power of attorney, an advance directive with a health care proxy, and correct beneficiary designations. The last one is not a document we draft — it is a form you fill out at your bank and your employer, and it overrides your will. More plans fail there than anywhere else.
What Alabama actually requires of a will
Section 43-8-131 sets the bar: the will must be in writing, signed by the testator or by someone else at the testator’s direction and in their presence, and signed by at least two witnesses who each saw the testator sign or acknowledge the will.
Alabama does not recognise holographic wills. A will written entirely in your own handwriting, signed but unwitnessed, does nothing here — unlike in a number of neighbouring states. The document in the desk drawer that everyone assumes will work is the most common bad surprise in this practice.
Section 43-8-132 allows a will to be made self-proving with an affidavit signed by the testator and the witnesses before a notary. Without it, someone has to locate your witnesses years later and get them into court. With it, the will proves itself. It costs nothing extra at signing and saves real time and money at probate. There is no good reason to skip it.
The four documents
- Last will and testamentSays who receives what, names your personal representative, and — if you have minor children — nominates a guardian. Without one, § 43-8-41 decides for you.
- Durable power of attorneyUnder the Alabama Uniform Power of Attorney Act, § 26-1A-104, a power of attorney is durable unless it expressly says it terminates on incapacity. That is the opposite of the old rule and it matters: durability is now the default. Certain powers — making gifts, changing beneficiary designations, creating or revoking a trust — must be granted expressly under § 26-1A-201, so a generic form often will not do what a family actually needs.
- Advance directive for health careSection 22-8A-4 requires it be signed by two or more witnesses at least 19 years old, and disqualifies anyone who signed on the declarant’s behalf, the named health care proxy, relatives by blood, adoption or marriage, anyone entitled to any part of the estate, and anyone directly financially responsible for the declarant’s care. Notarisation is not required.
- Beneficiary designationsYour 401(k), IRA and life insurance pass by contract to whoever is named on the form. Your will does not touch them. This is the single most common failure point in an otherwise good plan — a form filled in at a job someone left in 2009, naming a parent or an ex.
What happens if you do nothing
Alabama has a will for you, and most people are surprised by it. Under § 43-8-41 the surviving spouse’s share depends entirely on who else survives.
| Who survives | What the spouse takes |
|---|---|
| No children and no parent | The entire estate |
| A parent survives, no children | The first $100,000, plus one-half of the balance |
| Children, all of whom are also the spouse’s children | The first $50,000, plus one-half of the balance |
| Any child who is not also the spouse’s child | One-half of the estate. No preliminary dollar amount. |
Read the last row again. If you are married and have a child from a previous relationship, dying without a will gives your spouse half and your children the rest — including their share of the house. That is not an unusual family in North Alabama; it is an ordinary one. It is also the single most persuasive reason to sign a will, and almost nobody knows it. Note too that these dollar figures were set in 1982 and have never been indexed.
When a trust actually earns its cost
Often it does not, and we would rather say so. If your house is held jointly with right of survivorship, your retirement accounts have named beneficiaries and your bank account is payable on death, a great deal may already pass outside probate with no trust at all.
A revocable living trust genuinely earns its cost when there is real property in more than one state, a blended family, a beneficiary who should not receive money outright, a business interest, or a real desire for privacy — Alabama has no trust registry, and a trust is not filed publicly the way a will is.
It does not protect assets from your creditors. Section 19-3B-505(a) is explicit: during the settlor’s lifetime, the property of a revocable trust is subject to claims of the settlor’s creditors. After death, that property remains reachable for creditor claims, administration costs, funeral expenses and the family allowances, to the extent the probate estate cannot cover them. Anyone selling a revocable trust as asset protection is selling something it is not.
The mistakes we see most
- An unwitnessed handwritten will. Alabama does not recognise holographic wills, no matter how clear the intention. Handwriting itself is not the problem — § 43-8-131 requires a writing, not a typed document — but without two witnesses it does nothing.
- A trust that was never funded. The trust controls only what was actually transferred into it. Everything left outside passes under the pour-over will, through probate — the exact thing the trust was meant to avoid.
- Beneficiary forms that were never updated after a divorce. Section 43-8-137 revokes gifts in a will to a former spouse, but it does not reach beneficiary designations at all.
- A power of attorney with no express authority to make gifts or handle a trust, discovered at the moment it is needed.
- Nobody knowing where the originals are. A perfect plan nobody can find causes exactly the problem it was meant to prevent.
- Naming a personal representative who lives out of state without thinking about what that means practically for court appearances and property.
What we do
We draft Alabama documents for Alabama families, at published flat fees. Simple will, complete will plan, revocable living trust, irrevocable trust, and the powers of attorney and health care documents that go with them. We also prepare the deed that moves your house into a trust, because we prepare deeds every week — and we tell you plainly that you record it, because an unrecorded deed does not move the property into the trust at all.
We do not handle contested will litigation, and we do not give tax advice. Entity choice and tax elections belong with your CPA.
Limestone, Madison, Morgan, Lauderdale, Colbert, Franklin and Lawrence Counties. Filing fees and local practice differ from one probate office to the next.
Bring a list of what you own and who you want to have it.
That is enough for a useful first conversation, and it is usually enough for us to tell you which package fits and whether you need a trust at all.
Questions we get asked
Is a handwritten will valid in Alabama?
No. Alabama does not recognise holographic wills. Section 43-8-131 requires the will to be in writing, signed, and witnessed by at least two people who saw the testator sign or acknowledge it. A handwritten, unwitnessed will does nothing here.
Do I need a trust?
Often not. If your house is held jointly with survivorship, your retirement accounts and life insurance name beneficiaries, and your bank account is payable on death, much may already pass outside probate. Trusts earn their cost with property in more than one state, blended families, a beneficiary who should not inherit outright, a business, or a genuine privacy concern.
Does a living trust protect my assets from creditors?
A revocable one does not. Ala. Code § 19-3B-505(a) provides that during the settlor’s lifetime the property of a revocable trust is subject to the settlor’s creditors, and after death it remains reachable for creditor claims and administration costs where the probate estate is inadequate. Irrevocable trusts are a different analysis and a different conversation.
What happens if I die without a will in Alabama?
Section 43-8-41 decides. If you are married with no children and no surviving parent, your spouse takes everything. If a parent survives, your spouse takes the first $100,000 plus half the balance. If all your children are also your spouse’s, the first $50,000 plus half. But if you have any child who is not your spouse’s child, your spouse takes only one-half.
Does my will need to be notarised?
The will itself needs two witnesses, not a notary. But the self-proving affidavit under § 43-8-132 is signed before a notary, and it is worth doing — without it someone has to track down your witnesses years later to prove the will.
Does divorce cancel my will?
Partly. Section 43-8-137 revokes any disposition to a former spouse, and the property passes as if they had not survived you. It does not touch retirement accounts or life insurance, which pass to whoever is on the beneficiary form. And a legal separation that does not end the marriage does not trigger the statute at all.
What does an estate plan cost?
Flat fees, published: simple will $650 single and $950 married; the complete will plan, which adds powers of attorney and health care documents, $1,200 and $1,800; revocable living trust $2,400 and $3,400. Full list on our pricing page.
Questions about estate planning? Email estateplanning@dsp.law or call 256-434-1678.
Daniel S. Pickens Law · 300 West Green Street, Athens, Alabama 35611
One meeting usually settles it
What you own, who you want to have it, and who decides if you cannot. Most families need less than they feared and get more clarity than they expected.
Daniel Shawn Pickens
Daniel S. Pickens Law · 300 West Green Street, Athens, Alabama 35611 · 256-434-1678. Office hours Monday to Friday, 8:00 a.m. to 4:30 p.m.; phones answered 24/7.
Alabama Probate: Start Here
The questions families in Limestone, Madison, Morgan, Lauderdale, Colbert, Franklin and Lawrence Counties actually call us about, answered for Alabama specifically.
If someone has died and you need to start:
How probate works in Alabama · What probate court actually does · Step by step, start to close
If there is no will:
Being appointed administrator of an estate with no will
If you are the executor:
Do you need an executor at all · Can a beneficiary also serve as executor
If the family disagrees:
Contested estates and will disputes
What it costs:
What probate should cost in Alabama · Keeping a small estate affordable
Talk to us: 256-434-1678
Athens office: 300 West Green Street, Athens, Alabama 35611
Shoals office: 849 Florence Boulevard, Florence, Alabama 35630 — serving Lauderdale and Colbert Counties