A Last Will and Testament is a legal document that provides for the distribution of a person’s assets at death. Assuming that probate is necessary and that no alternatives to probate are available, all wills must be admitted to probate before they are considered to be effective. The probate process includes the steps of opening, administering, and closing the estate.
How to probate a will in Alabama depends on the validity of the document, which in turn depends on a set of rules known as “testamentary formalities.” These rules require the will to be (a) in writing, (b) signed by the person making it (testator) or someone in the testator’s presence and under his or direction, and (c) attested by at least two witnesses who sign their names in the presence of the testator. The testator must also be at least 18 years old and mentally competent.
Probate Note: Unlike some states (like Mississippi), Alabama does not recognize handwritten (holographic) wills. Holographic wills are entirely in the handwriting of the testator. In some states, holographic wills are deemed valid regardless of whether or not they are properly witnessed. There is no such rule in Alabama. A Last Will and Testament will only be admitted to Alabama probate if it is properly signed and witnessed in accordance with Alabama law.
If there is a need to probate a will in Alabama, it’s best to do it quickly. Wills are not effective in Alabama unless they are filed for probate in Alabama within five years from the death of the testator. (There is an exception for wills admitted to probate in another state within the five-year period.) Wills that are not filed within 12 months from the date of the testator’s death may be invalid as to purchasers of estate assets (i.e., those who purchase the assets in good faith may be able to keep good title even if they otherwise would have been distributed to someone else). Concealing the existence of a last will and testament is considered fraud, and the Alabama probate court may force someone produce a it under threat of contempt of court.
So how do you probate a will in Alabama? The word “probate” simply means “to prove.” The probate process is sometimes referred to as “proving” the will. This is easily accomplished if the Alabama estate lawyer can demonstrate that the document is self-proving under Alabama law. A will is self-proving if it is accompanied by affidavits testifying that it was executed in accordance with Alabama’s testamentary formalities. These affidavits are usually prepared and signed at the time the will executed. If the will is accompanied by a self-proving affidavit, no further evidence is required.
Probate Note: To determine if a will is self-proving, look for a separate portion (usually on the last page or two) that contains a notarized statement by the witnesses stating that the document was duly executed. The witnesses usually sign the will twice: once as witnesses only and once on the self-proving affidavit. Look for a notary seal on the self-proving affidavit.
If the will is not self-proving, the lawyer must obtain the testimony of at least one of the witnesses. This is easy to do if the witness is alive, can be located, and are willing to cooperate. If a long period of time has passed since the document was signed and witnessed, locating the witnesses can be challenging. (Note: We are usually successful in tracking down witnesses.)
If the witnesses are dead or reside out-of-state, testimony verifying the handwriting of the testator’s signature and that of at least one witness can be provided in lieu of witness testimony. For out-of-state witnesses or those unable to come to court, the court may issue a “commission” to take the “deposition” of the witness. The commission is an order appointing some person as a type of notary public who is authorized to place the particular named witness under oath. The “deposition” is a written set of questions that the witness must answer and sign under oath.