Who Are the Rightful Heirs?
If your loved one died “testate” (leaving a will) then the people who share in the estate are identified for you in the will itself. (Although there may be some additional work to do if the testator left out a spouse or child). Individuals listed in the Will are not technically “heirs,” but are instead referred to as “devisees” or “legatees” because they may or may not be related to the maker of the will.
But what if your loved one died “intestate,” meaning he did not leave a Will?
When someone dies intestate in Alabama you must identify the persons who share in the estate based on Alabama’s laws of “intestate succession.”
The intestacy statutes are designed to distribute property in a way that closely lines up with how the average Alabama citizen would have designed his will had he written one. This a good safety net, but most people do not want to rely on it and instead prefer to have a say in how their property is divided after their death. That’s why many people choose to sign a will with the help of an estate planning attorney.
But what if your loved one didn’t sign a will and has to rely on the intestate succession “safety net?”
Here’s how intestate succession in Alabama works:
The first question you have to ask is whether the deceased person was married at the time of his or her death.
Deceased Person Left A Spouse:
- But Did Not Leave Parents or “Issue” (issue are lineal descendants, so your children, grandchildren, great-grandchildren, etc.) – then Spouse gets entire estate;
- And Left Parent(s) but No Issue – then Spouse gets first $100,000 plus half the balance of the estate, and the parent(s) get the other half;
- And Left Issue, who are also Issue of the Surviving Spouse – then Spouse gets first $50,000 plus half the balance of the estate, and the Issue share the remaining half’;
- And Left Issue who are NOT also Issue of the Surviving Spouse – then Spouse gets half and the Issue get half.
Deceased Person Did NOT Leave a Spouse then this priority is followed:
- Issue (Deceased Person’s Children and their Descendants);
- Brothers and Sisters (or if all deceased then nieces and nephews)
- Grandparents (or if all deceased then aunts and uncles or their descendants)
- The state of Alabama.Yes, if someone dies in Alabama without a spouse and no living relatives then his or her estate “escheats” to the State of Alabama. This is an extremely rare situation, but it does happen!
Each heir of equal degree inherits equally with other heirs of that degree. So, if you die leaving no spouse and two children your two children will each inherit one half of your estate.
But what if one of your children dies before you do? Let’s look at an example:
You and your spouse had two children together, Bob and Sue. Both your spouse and Bob die before you do, but Bob had two children (your grandchildren) before he passed. When you die your estate will go half to Sue and the other half (the half that Bob would have gotten) will be divided between his two children so that they each get 1/4 of your estate.
An interesting quirk of the law is that if one of your heirs dies soon after you do then his heirs may or may not share in your estate.
In Alabama, an heir-at-law must survive the decedent by at least five days in order to inherit through intestate succession.
For example, if your brother is one of your heirs at law when you die, but he dies a month after you do then his share will pass to him and then into his own estate. If, on the other hand, he dies four days after you do then under Alabama law it’s as if he died before you and neither he nor his estate get any part of your estate.
Here’s an example to make it more clear:
You are unmarried and have one living relative – your brother. You would like all of your property to go to your brother when you die. If he dies before you then you would like everything you own to go to your church. Your brother’s will leaves everything to a non-profit organization you have a strong moral objection to. If you die without a will and your brother dies a week after you do then all of your property will pass to his estate, to be disposed of in accordance with his will. So, since you didn’t have a will your brother’s wishes will control what happens to your property… and it will end up with the non-profit you dislike so much!
This “survivorship” requirement can be changed in a will. For instance, many wills provide that a beneficiary must survive the decedent by at least 60 days in order to inherit. This gives people more control over who ultimately ends up with their property. In the example above, for instance, a survivorship requirement would have made sure that your property ended up at your favorite church instead of at your brother’s favorite non-profit.
The only way to make sure that your property is distributed the way you want after your death is to execute a valid last will and testament.
Let’s look at another example.
You are sixty-years-old with no spouse and no children. Your parents and siblings all predeceased you. Your only living relatives are a cousin on your mom’s side whom you never got along with and haven’t spoken to in forty years and a nephew on your dad’s side who lives out of state and therefore you never became close with. You have a long-term committed romantic partner, but you have never married. Your church is very important to you and you make it a point to tithe and donate to the church as much as you can. If you die without a will your cousin and nephew will each receive one half of your estate. Your romantic partner receives nothing. Your church receives nothing.
Or, even worse, if you die with no living relations in the above-described situation then the state of Alabama inherits your entire estate.
Avoiding situations like this is one of the primary reasons many people choose to sign wills as part of an estate plan.
An Estate Planning Lawyer Can Help
You may be tempted to use an online do-it-yourself form, but do so with caution. They can create problems that cost your heirs time and money down the road.
A lawyer can help you make sure that your will works for you and your loved ones, and that it coordinates with your overall estate plan. Get peace of mind by talking to our experienced estate planning attorneys today. Call us at 205-553-5353 or come by our Tuscaloosa office to find out what we can do to protect your assets and your family.