Estate planning is the first step in guaranteeing that your assets are safeguarded and allocated according to your final wishes.
One of the most well-known estate planning documents, a will allows you to dictate how your assets and property should be distributed after your death. But did you know there are several different types of wills?
In Alabama, some types of wills are more common and advisable than others. In this article, we’ll discuss different types of wills and how they work under Alabama law so you can make an informed decision about which one is right for your estate plan.
What is a Will?
A will is a legal document that outlines how you want your assets and property distributed after your death. It’s a cornerstone of estate planning, allowing you to name beneficiaries, appoint an executor to manage your estate, and even designate guardians for minor children.
In Alabama, there are three main legal types of wills:
Attested Wills
An attested will, which is a witnessed will, is the most common and recommended type of will. These wills offer the strongest legal protection and are less likely to be challenged in court.
Holographic Wills
These are handwritten wills signed by the testator. In Alabama, holographic wills are not given any special treatment as to validity. This is unique in that many states do not require a holographic will, a will written in the handwriting of the testator, to meet the normal formalities of a will.
Nuncupative (Oral) Wills
Alabama does not recognize spoken wills. According to Alabama Code § 43-8-131, every will must be in writing. However, even if spoken wills were legal in Alabama, they would not be advisable. Verbal instructions can be easily misremembered or misinterpreted, leading to disputes among beneficiaries. A properly written and witnessed will ensures your final wishes are clearly understood and legally binding, providing peace of mind for you and your loved ones.
Common Purposes and Categories of Wills Used in Estate Planning
While the above are the legal types of wills recognized in Alabama, wills are often categorized by their purpose or the specific provisions they contain. Here are some common categories:
Statutory Will
A statutory will is the most basic type of will. It’s appropriate for individuals with uncomplicated estates who want to leave their assets to their beneficiaries. In a statutory will, you can name an executor, specify how you want your assets distributed, and even name guardians for minor children.
Statutory wills are straightforward, but they don’t offer much flexibility or control over how and when your assets are distributed. While these wills don’t avoid probate, in Alabama, the probate process for straightforward estates can be relatively quick and inexpensive compared to some other states.
Testamentary Trust Wills
A testamentary trust will establishes a trust that comes into effect upon your death. If you wish to manage the timing and distribution of assets to your beneficiaries, care for dependents with special needs, or provide for minor children, this kind of will can be helpful.
You designate a trustee in a testamentary trust will to oversee the trust’s assets per your wishes. This can help ensure your beneficiaries don’t squander their inheritance and can provide for their long-term needs.
Wills for Married Couples
In Alabama, it’s generally recommended that spouses create separate wills rather than joint or mirror wills. This allows each spouse to have control over their own estate and make changes if needed after the death of the first spouse.
Joint wills, where both spouses sign a single document, and mirror wills, where spouses have identical but separate wills, are less common in modern estate planning. They can create complications, especially if circumstances change after the first spouse’s death.
Pour-Over Wills
A pour-over will is used in conjunction with a living trust. It “pours over” any assets that are not already in the trust at the time of your death. The purpose of a pour-over will is to ensure all of your assets end up in your trust, potentially simplifying the probate process.
For a pour-over will to be effective, you must establish and fund a living trust with your assets. The pour-over will catch any assets left out of the trust during your lifetime and transfer them to the trust upon your death.
Each of these categories can be implemented through an attested will, which remains the most legally robust option in Alabama. The choice between these categories depends on your individual circumstances, family situation, and estate planning goals.
Make Sure Your Will Stays Current
Your will should reflect your current life circumstances and wishes. Major life events like marriage, divorce, or the birth of a child can all impact your will. Children or beneficiaries with special needs require special consideration.
Review your will periodically with your attorney to make any needed updates. An outdated will can lead to family disputes or assets going to unintended recipients. No one likes to think about their mortality, but keeping your will current is a gift to your loved ones.
At The Law Offices of Brenton C. McWilliams, we have over a decade of experience helping clients navigate estate planning. We are available to assist you in creating a plan that safeguards your assets and cares for your loved ones in Alabama. Contact us today for a consultation and begin safeguarding your legacy
