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Decades ago, Alabama was home to a significant population of African American farmers. Due to discrimination, it took time for these people to be able to own their land. Thus, when they were allowed to have property, they no longer viewed the land they owned as a mere plot to till. It is a bittersweet testament to their rights being recognized, albeit slowly. Thus, there is great value and legacy tied to these lands. 

However, the discrimination against black farmers did not end with their right to own. It persisted with their right to pass on their legacy. Through the years, systemic inequalities have made it difficult for them to assess the value of their lands or even create valid wills. Thus, many of these properties now face the threat of being lost as heirs’ property

When dealing with heirs' property or any other inheritance issues, it is crucial to be familiar with Alabama inheritance laws, which we will outline in this article. Such knowledge will help you craft strong claims, create valid wills, and clear inheritance issues that may have been plaguing your family for generations. 

What Happens if Someone Dies With a Will in Alabama?

When a person dies with a valid will in Alabama, the document will be probated upon their death so their last instructions may be executed. However, it must be noted that a mere letter with instructions will not always be considered or followed as a valid will in Alabama. Instead, to have a valid will, the creator must be 18 or older, have a sound mind, and not be influenced by others when writing the document. Additionally, the written document must be signed by three individuals: the creator and two witnesses who are not inheritors of the former. 

If at least one of the above conditions is not met, the will may be considered invalid, and the creator’s instructions may not be executed. Thus, it is often recommended to consult an estate planning professional when creating a will to ensure the document is legal. A professional can also ensure that the will covers all appropriate properties. 

After all, not all assets can be included in a will. Nonprobate properties are joint properties or those with named beneficiaries, like life insurance policies, that do not have to be included in a will, as they are immediately passed on to the other owner or the named beneficiary upon the person’s death and would, therefore, not need a probate court.  

A valid will could be prepared years before a person’s death and will still be followed upon their demise unless it is changed or revoked. The maker may decide to change their will anytime, such as when they lose or add property, but previous conditions to making a will must still be met. That said, whichever will was most recent during the person’s death will be implemented.

Probating a Will After the Maker’s Death

To execute a will after a person’s demise, the document should be delivered to a probate court in the maker’s residence. Thus, if the creator lived in Montgomery County, their inheritors, representatives, or anyone possessing their will should file for probate in the said county. Filing should be done within five years of the creator’s demise.  

While probating a will, an inventory of the properties will be conducted. A notice will also be sent out or published so potential heirs may be informed. They may then be allowed to make their claims. Thus, settling an estate will typically take more than six months — even with a will.     

Contesting a Will

Inheritors do not always agree with the decedent’s last wishes. If their reasons for disagreement are valid enough, they may contest the will. However, contesting a will in Alabama requires meeting several conditions. 

For one, the person who contested the will must be an heir through the will or Alabama inheritance laws. They may also be an heir of a past will that was left out in the recent one or a creditor. Furthermore, they may contest the will in the same probate court or in the same county where the will was probated.

These are some acceptable claims for contesting a will:

  • The will was not properly executed. 

  • The creator of the will was not of sound mind when making the will. 

  • The creator was influenced by other individuals when making the will. 

  • The will was found to be a fraud or made under duress. 

When the claims for contest are deemed valid, a trial on the matter will be conducted. If the will is found to be invalid, then inheritance laws will apply.  

Note that the statute of limitations for contesting a will is only six months. The only exception to this period is if the petitioner is a minor or of unsound mind, as they will be given 12 months after they become of legal age or of sound mind to contest the will. Still, even with that extended period, no will contest is allowed if 20 years have passed since the will was probated.  

Thus, it is best to consult an attorney before contesting a will. They can advise you on the validity of your claims and review if the law has no clauses that make it harder for heirs to go against the provisions. 

What Happens if Someone Dies Without a Will in Alabama?

When a person dies without a valid will in Alabama, they are considered to have died intestate and Alabama inheritance laws will be implemented to decide on the fate of their possessions. 

Spousal Rights

In Alabama, the portion of the estate the surviving spouse is entitled to varies. Specifically, it depends on whether the couple had children, the deceased had kids outside of the marriage or had no kids but had surviving parents. 

This table summarizes spousal rights as per inheritance laws in Alabama:


Spousal Inheritance

The decedent is survived by a spouse only (i.e., no surviving children or parents)

The spouse inherits the entire estate. 

The decedent is survived by a spouse and their children.

The spouse inherits the first $50,000 of the estate and then its remaining half. 

The decedent is survived by a spouse and their children, as well as the decedent’s children from another relationship. 

The spouse inherits half of the estate. 

The decedent is survived by a spouse and the decedent’s parents. 

The spouse inherits the first $100,000 of the estate and then its remaining half. 

Note that spouses in Alabama cannot be completely disinherited from a will. 

Children’s Rights

In Alabama, children are entitled to the remaining estate after spousal inheritance. That remainder will have to be divided evenly among the children. 

For instance, a man owns an estate worth $150,000, excluding non-probate properties. He has a wife and two children. Upon his death, his wife will get $100,000, meaning the first $50,000 of the estate and half of the remainder. His children will then get $25,000 each, as the remainder of the estate is $50,000 and it has to be divided evenly among the children. 

However, if the man had a child from another relationship (i.e., not his legal wife’s child), the inheritance would be different. The wife would receive $75,000 only. Then, the three children — including the illegitimate one — would receive $25,000 each. 

As can be seen in the above scenario, illegitimate children or kids from previous or other relationships have the same inheritance rights as the legitimate ones. Thus, legitimate children do not inherit more than their siblings simply because their parents are currently married. 

Along the same vein, the following have the same rights as legitimate or biological children:

  • Legally adopted children of the decedent.

  • Unborn children of the decedent.

However, suppose there are doubts about the unborn or illegitimate child’s parentage. In that case, the surviving parent may have to present proof, such as a paternity test or legal document declaring the decedent as the parent. 

The only children who might not receive an inheritance are stepchildren and foster kids who weren't the decedent's legally adopted children. If the decedent also has biological children but puts them up for adoption, these kids will not inherit as well. 

Furthermore, grandchildren can only be inheritors of an estate if their parent, who is supposed to be an heir, has already passed away. They will receive their parent’s share of the estate, which will be divided evenly if that parent has multiple kids.  

The Rights of Other Surviving Relatives

Spouses and children are prioritized by inheritance laws. However, if the decedent does not have one, other surviving relatives, such as parents, may inherit their estate. 

For instance, if the man with the $150,000 estate has no children but is survived by his parents and wife, then the wife will receive $125,000 and his parents will get $25,000. However, if he has no spouse, then the parents will get the entire estate. 

On the other hand, if there are no spouses, parents, or children, then the following flow of intestate succession will be followed:

  1. Siblings will inherit the estate instead of parents. 

  2. Grandparents will inherit the estate instead of siblings. 

  3. Aunts and uncles will inherit the estate instead of grandparents. 

  4. Cousins will inherit the estate instead of aunts and uncles. 

Throughout the succession hierarchy, there will be a fair division of the estate. For instance, if the decedent has three siblings, then these persons will each receive a third of the estate. 

Estates With No Heirs

Heirless estates are rare, as Alabama laws try to ensure that properties are passed on to surviving relatives, even if they are not in Alabama or the United States. However, if no one can inherit the decedent’s properties, the estate will be escheated to the state of Alabama

However, escheating property is not an immediate process. Indeed, the law states that if the decedent’s representative cannot find an heir within six months of writing letters, they will have to publish notices via newspaper for around a month. 

Therefore, it will take a year or so of no heir appearances before a property is escheated. Real estate takes even longer to dispose of without an heir, as selling the property is allowed only if no heir has come forward after two years since the publication of the abovementioned notices. 

Probating Intestate Deaths

Inheritance for intestate deaths undergoes a similar probate process as testate or deaths with a will. However, it can be expected that probate for deaths without a will is more complicated and will take longer, especially if the estate is large and there are many inheritors. 

Probate courts have to ensure that the estate distribution is fair or just, given that the decedent did not outline their last wishes. Every decision has to be careful and exact to avoid future complications (e.g., heirs contesting the will). Therefore, it is also best to have a probate attorney who can help protect your interests while the will is being probated. You can find tips online for hiring such a lawyer.

Unique Situations in Alabama Inheritance Law

There are unique situations where the standard inheritance laws may not apply. Thus, here are the resolutions to those instances:

Unique Inheritance Situation

Inheritance Resolution

Heirs pass away shortly after the decedent. 

Alabama law requires that the heir outlive the decedent by at least five days. Thus, if an heir passes away shortly after the decedent (e.g., a family is in a car crash and the children pass away two days after their parents), then the children (and their heirs) cannot be inheritors. 

Heirs are not in Alabama or citizens of the United States. 

Non-citizens are still entitled to their inheritances in Alabama. Thus, if there are heirs outside of the U.S., the will’s representative or executor may have to notify them so they may make a claim. 

Heirs are pregnant with an unborn child. 

The inheritance laws apply to the unborn child as if they are living or born already. 

Heirs are not full-blooded relatives of the decedent. 

Half-blood relatives are treated as full-blooded relatives by Alabama inheritance law (i.e., a half-sister may not receive less than other siblings).

Heirs are convicted of killing the decedent. 

Murderers who were supposed to be inheritors of their victims will be treated as if they had predeceased the decedent. Thus, they will not inherit anything, nor will their heirs. This rule also applies to joint properties and contractual arrangements with named beneficiaries, like life insurance policies. 

The decedent was in an LGBTQ+ marriage. 

LGBTQ+ marriages are valid in Alabama; thus, same-sex partners may inherit as if they were in a heterosexual marriage. 

However, instead of marriage licenses, Alabamians have marriage certificates that are issued after the union. That is because of opposition from conservatives to issuing marriage licenses before the wedding. 

Thus, same-sex couples are advised to have a will if they wish to ensure that the surviving partner has inheritance rights over the other’s property.

One of the most unique inheritance situations the Alabama probate court had to deal with, though, is in Willingham v. Smith, where Joshua killed his wife, Brandy, and then committed suicide. 

Brandy’s mother, Debora Willingham, appealed to the courts that Brandy’s family should inherit Joshua’s estate, as Brandy was Joshua’s wife. In a sense, it would also be retribution for the wrong Joshua did. However, Alabama inheritance law only dictates where a murder victim’s estate should go (in this case, Brandy’s) and not that of the murderer. Thus, Willingham eventually lost her case. 

Heirs’ Property in Alabama

Heirs’ property is a unique inheritance situation in Alabama that may be important to note. It is usually the result of a property that has been passed on from generation to generation through intestate deaths, that is, with no single heir. However, testate deaths may still lead to heirs' property if the decedent has assigned multiple owners to a single property. 

A property with several owners can lead to complications in the long run. Specifically, it is harder to sell or utilize the property (e.g., apply for a loan), as these owners have rights that they can assert. Eventually, it may lead to reduced value for the property. Therefore, it is highly advised to clear heirs' property. 

Does Alabama Impose Inheritance and Estate Taxes?

Alabama does not impose inheritance or estate taxes as long as the death occurred after December 31, 2004. Also, there is no gift tax in this state. This was made possible after federal legislation allowed the elimination of estate and gift taxes. 

However, federal gift taxes may still apply to certain properties. Thus, if you intend to give your heir or another person a gift before you pass away, consult if the federal tax applies. 

Resources Related to Inheritance Law in Alabama

Legal Services Alabama

LSA is an organization dedicated to providing low-income Alabamians with free legal services related to civil cases. They are particularly passionate about helping with systemic issues that influence social and economic inequalities in the state, such as the issue with heirs' property. Heirs' property leads to economic inequalities as it reduces property value, makes it harder to utilize an asset, and prevents co-tenants from accumulating wealth using the property. Thus, LSA offers legal services that may help clear or settle issues related to these ambiguous properties. 

Farmland Access Legal Toolkit

Heirs’ property exists in any state, but it is particularly prominent in Alabama, where African-American landowners used to make up most of the agricultural scene. Most of these valuable lands, however, are lost in time. Thus, to help out inheritors of these estates, Vermont Law and Graduate School, through its Center for Agriculture and Food Systems, included resources related to heirs' property in its legal toolkit. It provides information on the Uniform Partition of Heirs Property Act and a factsheet specifically for Alabama. 

Alabama Legal Help

Alabama Legal Help is a database of legal information created by the collaboration of LSA and Pro Bono Net. In relation to inheritance laws, it compiled resources related to last wills. For instance, it links to an informative brochure introducing elders to the idea of wills. Besides being a repository of legal information, Alabama Legal Help also offers a legal directory. You can use it to find a nearby law professional who can assist with your inheritance-related tasks or issues, such as creating a will.

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