The Surprising Consequences of Dying without a Will or Trust in Alabama

Do you know the consequences of dying without a will or trust in Alabama? If you are married, you might think that all your assets will automatically pass to your surviving spouse. In Alabama, however, that is not always the case. The rules for probate asset distribution can be complex, governed by Alabama’s default plan, which may not align with your wishes.

In this article, we will clarify the difference between probate and non-probate assets and explain how probate assets are distributed in Alabama when a will or trust is not in place. If you do not like Alabama’s default plan, you need to create a will or trust to ensure your assets are distributed to the people you want to receive them.

Your assets (real and personal property) are either probate or non-probate.  Probate assets do not have a clear owner after death. An example of a probate asset would be a home owned only in one person’s name. On the other hand, non-probate assets have “instructions” on where they go after you pass away. Non-probate assets fall into one of three categories: (1) assets owned by a trust, (2) assets owned jointly with rights of survivorship, and (3) assets with a beneficiary or payable on death designation.

The probate process is required for all probate assets. In these cases, the probate court steps in to determine the rightful beneficiaries based on either your will or Alabama’s default plan. One common misunderstanding is that a will avoids probate.  A will, however, only changes Alabama’s default plan.

If you have a will, the probate court will distribute your probate assets according to the terms outlined in your will. If you do not have a will, or if your will cannot be found, your probate assets will be distributed according to Alabama’s default plan.

The Alabama default plan is described below.

You have a surviving spouse, but do not have surviving children or parents.	Your surviving spouse is entitled to all probate assets.
You have a surviving spouse and surviving parent(s), but you do not have surviving children.	Your surviving spouse receives the first $100,000 in value, then your surviving spouse and parent(s) each receive 50% of your remaining probate assets. If you have two surviving parents, then their share is divided equally between them.
You have a surviving spouse and surviving children, all of whom are children of your surviving spouse also.	Your surviving spouse receives the first $50,000 in value, then your surviving spouse and children each receive 50% of your remaining probate assets. Your children’s share is divided equally between them.
You have a surviving spouse and surviving children, one or more of whom are not children of your surviving spouse.	Your surviving spouse receives 50% of the value of your probate assets, and your surviving children receive the remaining 50%. Your children’s share is divided equally between them.
You do not have a surviving spouse, but you have/had children.	Your surviving children each receive equal shares of your probate assets.  If one or more of your children passed away before your death, then their share passes down to their children (in equal shares). If they did not have children, then their share is divided equally among their siblings.
You do not have a surviving spouse, children, or grandchildren, but you have surviving parent(s).	Your surviving parent(s) receive equal shares of your probate assets.
You do not have a surviving spouse, children, grandchildren, or parents, but you have/had siblings.	Your probate assets pass to your surviving siblings in equal shares.  If one or more of your siblings passed away before your death, then their share passes down to their children (in equal shares).  If they did not have children, then their share is divided equally among your surviving siblings.
You have no living relatives.	Your probate assets pass to the State of Alabama.

The Alabama Code can be found here: Code of Alabama | Article 3 - INTESTATE SUCCESSION | Casetext

In our experience, many people are not satisfied with Alabama's default estate plan. In these cases, it is crucial to use estate planning strategies to ensure your wishes are carried out. These strategies typically include a mix of joint ownership with rights of survivorship, beneficiary and payable on death designations, a will, and a trust. It is essential to review the ownership and beneficiary details for each of your assets to make sure they will go to the people you want to receive them.

At Provident Law / Estate Planning LLC, we are committed to creating estate plans that are tailored to the unique needs of each client. We will collaborate with you to develop a personalized plan that reflects your wishes and ensures your family is cared for according to your preferences.

Your Next Step

As you move forward with your estate planning, we invite you to contact our team at Provident Law / Estate Planning LLC. We are here to guide you through the process, ensuring your plan is tailored to your unique needs and goals. Whether you are creating a will, establishing a trust, planning for incapacity, or reviewing existing documents, we are here to provide the personalized guidance you need. Reach out today to schedule a consultation and take the next step to give your family peace of mind.

About the Author

Colin McMichen is an experienced attorney and the founder of Provident Law / Estate Planning LLC, a Birmingham, Alabama-based firm. With a focus on estate planning and probate law, Colin is dedicated to helping individuals and families navigate complex legal matters with confidence.

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