A Last Will and Testament is one of the most important legal documents you will create during your lifetime. If you die without a Will, you are deemed to have died “intestate” and state laws will determine how and to whom your assets will be distributed.
Your Will must meet the legal requirements set forth by the state in order for it to be valid. Most states will also accept a Will that was executed in another state if the document is a valid Will under that state's law. The general requirements for a valid Will are usually as follows: (a) the document must be written (meaning typed or printed), (b) signed by the person making the Will (usually called the “testator” or “testatrix”, and (c) signed by two witnesses who were present to witness the execution of the document by the maker and who also witnessed each other sign the document.
In Alabama, the laws regarding the valid execution and witnessing of a Will are set forth in the Code of Alabama, Title 43 Wills and Decedent's Estates, Chapter 8 Probate Code, Article 7 Wills Generally, Sections 43-8-130 through 43-8-134.
In Alabama, any person at least eighteen (18) years of age who is of sound mind may make a Will. (Section 43-8-130) “Sound mind” generally means someone who has not been deemed incompetent in a prior legal proceeding.
Your Will must be in writing, signed by you and by two witnesses. If you are physically sign your name, you may direct another party to sign for you. This party may not be counted as one of the two required witnesses. Each witness must either see you sign the Will or be told by you that it is your signature and that witness must sign the Will in your presence and in the presence of the other witness. (Section 43-8-131)
Witnesses to a Will must be generally competent. Generally, it is recommended that the witnesses to the Will be “disinterested”, which means that they are not beneficiaries of the will. While it is advisable to avoid conflicts by having two disinterested witnesses, an Alabama court will not invalidate a Will simply because a witness who signed it is also a beneficiary. (Section 43-8-134)
If a Will's authenticity is unchallenged it may be probated in a simplified procedure if it has been self-proven. Witnesses to a self-proven Will are not required to testify in court because the court automatically accepts a self-proven Will as authentic. To self-prove a Will, you and the witnesses must affirm to the authenticity of the Will in an affidavit before a notary public. (Section 43-8-132(a))
If you would like for our office to assist you with drafting (and executing) this important document, please complete the form below: