presented by Bradford & Holliman, Estate Planning
People sometimes think that an estate plan is not necessary because “I don’t have that much anyway.” This misconception is based on the idea that it is too much trouble to prepare a Last Will and Testament and that everything will be sorted out and given to the surviving spouse or children regardless of whether the person has a Will. While it is true that your estate will be “sorted out,” that does not mean that it will be sorted out the way you would prefer. The following are a few of the surprising things that can happen if you don’t have a Will:
- Your surviving spouse does not always receive everything – Couples generally think that the surviving spouse will receive everything when the first spouse dies. If you do not have a Will, under Alabama law, parents and children may receive some of the assets. This is usually a big surprise to the surviving spouse; especially, as is often the case, if the surviving spouse discovers that he or she is not the sole owner at a real estate closing.
- Your child living out of state cannot handle your estate – Parents usually want a child to serve as the personal representative and handle the probate of an estate. However, Alabama law does not allow a non-resident to be appointed in those roles unless a Will specifically authorizes the appointment of the non-resident. This means that an attorney may be appointed to handle your estate simple because you did not have a Will authorizing an out-of-state person to handle your estate.
- A bond is required – A Will usually exempts the personal representative from the necessity of posting a bond to guarantee the personal representative does not mishandle estate assets. If there is no Will, Alabama law requires an insurance bond to be posted. This means your surviving spouse or children may be forced to post a bond to probate your estate.
- An inventory is required – A Will can exempt the need to prepare a lengthy accounting of estate assets. If there is no Will, Alabama law requires the personal representative to file an accounting with the court.
In general, not having a Will can mean that your loved ones do not receive what you wanted them to have. It also means that they may have to go through burdensome and expensive procedures to get those assets.
–Melanie Bradford Holliman
Partner, Bradford & Holliman, LLC
Practice focuses on estate planning, elder law and special needs trust.
2491 Pelham Parkway, Pelham, Ala. 35124
This article is for educational purposes and is not intended for specific legal advice.