We only have so much time on this earth and it can be difficult to do everything that we want or need to do. In some instances, this means that a person dies before they are able to draft a will.
Jump ahead to these sections:
- Alabama’s Intestacy Laws Explained
- How Does Probate Work in Alabama If There Is No Will?
- Who Typically Inherits Assets in Alabama If There Isn’t a Will?
- Frequently Asked Questions: Dying Without a Will in Alabama
What happens if you die without a will? It depends on where you are living at the time of your death. Why is this the case? Because each state has its own set of laws that determines what happens to your property if you die without a will. For those who live in Alabama, here are some of the laws and regulations that can affect the property and assets of a deceased loved one. Below, we also answer some questions you may have regarding the estate of a deceased loved one in the state.
Alabama’s Intestacy Laws Explained
A person who dies without a will is said to have died “intestate.” Specifically, intestacy laws determine what happens to a person’s property when they die without a will. If you die without a will in Alabama, then the state’s laws will determine what happens to your property.
How Does Probate Work in Alabama If There Is No Will?
In Alabama, the law follows the general presumption that a person would want their property to go to their closest relatives after their death. How do the relatives get the property? Through the probate process.
In Alabama, if a person dies without a will, then a personal representative will be appointed by the probate court. The personal representative will be in charge of collecting the assets of the deceased, paying all debts and obligations, and distributing the remaining assets to the heirs. An heir is simply a person who is legally entitled to receive the deceased’s property. In most instances, an heir is the person’s next of kin. A deceased person’s next of kin are those persons most closely related to them at the time of their death.
In Alabama, the steps in the probate of an an intestate estate are as follows:
- Petition filed
- Take immediate control of the estate
- Inventory of the estate within 45 days
- Bond, equal to the aggregate capital value of the personal property of the estate, plus one year's estimated income from the estate
- Notice (as may be required)
- Letters of Administration granted
- Notice to file claims must be published once a week for three weeks 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
- Probate court must approve personal representative's fees (unless all interested persons agree and consent)
Resources to help with the probate process
If you become a personal representative as established by probate, it is worth noting that it comes with a lot of responsibilities. It can be difficult, especially when you are mourning the loss of a loved one.
If you have questions about the Alabama probate process or about being a personal representative, you should contact a probate attorney licensed to practice law in Alabama. An experienced probate attorney can answer your questions and may be available to help you navigate the probate process.
The county court where you file may also have information to help guide you through the probate process. One of the simplest ways to access this information is through the county court’s website. Many of the websites provide information about the probate process online. If you are having trouble accessing the information, contact the probate court directly.
Small Estates Act
The probate process can often be time-consuming and expensive. In some instances, the full probate process may not be necessary.
In Alabama, if the value of the entire decedent’s (the deceased person) estate does not exceed $30,608 then it may be possible to distribute the estate under the Alabama Small Estates Act. According to the law, the Small Estates Act “provides a method, through a court proceeding, to distribute personal property of a deceased person in a summary distribution manner to a surviving spouse, or appropriate distributees of the decedent, without full probate administration.”
Who Typically Inherits Assets in Alabama If There Isn’t a Will?
Alabama law determines who inherits assets if there isn’t a will. Who typically inherits depends mostly on whether or not the deceased has a surviving spouse.
Who typically inherits will also depend on whether or not the deceased had any "issue.” When talking about intestacy, issue means all of the people who have descended from the deceased. In Alabama, this includes natural children, adopted children, natural grandchildren, adopted grandchildren, and so on down the line.
Your relationship to your children
Under Alabama’s intestacy laws, your relationship to your children will determine whether or not they are entitled to receive a share of the estate. Consider the following relationships:
- Legally adopted children will be treated the same as your biological children.
- Children conceived by you but not born until after your death will also be treated the same as your other biological children.
- Children born outside of marriage may be entitled to a share of the estate if paternity can be legally established.
- Foster children that you did not legally adopt will not receive anything under Alabama’s intestacy laws.
- Stepchildren that you did not legally adopt will not receive anything under Alabama’s intestacy laws.
- Any child of yours that was legally adopted by another family will not be entitled to anything under Alabama’s intestacy laws.
If you have foster children or stepchildren and want to provide for them after you are gone, then you should meet with an estate planning attorney to discuss your end-of-life planning. The estate planning attorney can advise you of your options for providing for all of your children after you are gone.
Frequently Asked Questions: Dying Without a Will in Alabama
You are responsible for deciding whether or not you need a will. This is a personal decision that comes with many considerations. A will can provide you with control over who gets what after you are gone. However, in some instances you may decide that you either don’t need or don’t want a will.
If you have additional questions about intestate issues in Alabama, then you should contact an experienced probate attorney licensed to practice in Alabama. They will be able to answer your questions.
What happens when your parent dies without a will?
Typically, when looking at receiving assets from an estate, whether or not you will get anything is determined by whether or not your parent had a surviving spouse.
If there is no surviving spouse, then you and your parent’s other issue (children or next of kin) would inherit the estate. If your parent’s issues are all equally related, then you would all be entitled to an equal share of the estate. For example, if you have two other siblings then you would each be entitled to one-third of the estate.
If your parent’s issues are related by an unequal degree, then some will take “by representation.” In the above example, if one of your siblings is already deceased but had two children then those children would take by representation. This means that they would be entitled to your deceased’s siblings share of the estate. In this example, each of the children would receive one-half of their deceased parent’s one-third.
If there is a surviving spouse, then you will still be entitled to a share of the estate. This will be discussed in more detail below.
What are a surviving spouse’s rights if there’s no will?
A surviving spouse has many rights if there is no will. However, these rights will be determined by who else survives the deceased.
Under Alabama intestacy laws, if the deceased has no surviving issue or parent, then the surviving spouse is entitled to the entire intestate estate. Otherwise, the surviving spouse will have the following rights to the estate:
- If there are no surviving issue but the deceased’s parents are still alive, then the surviving spouse gets the first $100,000 plus the remaining half of the intestate estate.
- If there are surviving issue and they are also the issue of the surviving spouse, then the surviving spouse gets the first $50,000 plus the remaining half of the intestate estate. The issue get the other half of the intestate estate.
- If there are surviving issue and at least one is not the issue of the surviving spouse, then the surviving spouse gets one-half of the intestate estate.
Note: Estate Set-Asides
Did you know that not everything is considered part of the deceased’s estate? In some instances, certain assets are set aside to provide for the family. Notably, when the deceased is survived by a spouse or minor children. These set-aside assets include the following:
- A homestead allowance of $15,000.
- An exempt property allowance of up to $7,500.
- A family allowance up to $15,000. The family allowance is meant to provide for the family during the period of estate administration. This amount may be paid as a lump sum or periodically.
Estate set-asides can raise complicated questions, especially when children are involved. If you have questions about whether you are entitled to estate set-asides, you should consult with a probate attorney. Your attorney can help you review the estate and its assets.
Are there any probate exemptions if you die without a will in Alabama?
In some instances, certain property may be exempt from being used for the payment of the estate’s debts and other obligations. These are called probate exemptions. In Alabama, probate exemptions apply where the deceased is survived by a spouse and/or minor children.
In Alabama, a surviving spouse or children may be entitled to an exempt property allowance of a value up to $7,500. This exemption applies to household furniture, automobiles, furnishings, appliances, and personal effects.
Who is considered next of kin in Alabama?
A person’s next of kin are generally those persons most closely related to them by blood. These are the persons who may be entitled to a share of distribution of the estate. This may include the deceased’s children, issue, parents, siblings or issues of siblings, grandparents or issues of grandparents.
In Alabama, who is considered next of kin matters. Especially if a person dies without a will. If the deceased has no next of kin, then the person’s property may go to the state of Alabama. If you believe that you are entitled to property that has gone to the state of Alabama, you should contact a probate attorney immediately.
Dying Without A Will in Alabama
End-of-life planning is about more than just what you want. It can be about providing for your loved ones after you are gone. As you have read in the above sections, not everyone is entitled to inherit assets under Alabama’s intestacy laws.
If you are concerned about who will be entitled to what under Alabama’s intestacy laws, then you may want to know how to write a will and make it legal. For any additional questions, it is recommended that you speak with an experienced estate planning attorney. An estate planning attorney can answer your questions about end-of-life planning and help you decide what is best for you.
- “Administration of an Inestate Estate.” Administration Handbook, Probate Court Mobile County AL, 2022. Probate.mobilecountyal.gov.
- “Alabama Small Estates Act.” Judicial, Probate Court Mobile County AL, 2022. Probate.mobilecountyal.gov.