Alabama Estate and Probate Law: Wills, Trusts, and Intestate Succession

Alabama's estate and probate framework governs how property is transferred at death, whether through a formally executed will, a trust instrument, or the state's default rules of intestate succession. The Alabama Probate Code — codified primarily in Title 43 of the Code of Alabama (1975) — establishes the procedural and substantive standards that Alabama probate courts apply when administering decedents' estates. This reference covers the legal classification of estate instruments, the mechanics of probate administration, and the regulatory boundaries that determine which rules apply to a given estate.

Definition and scope

Estate and probate law encompasses the legal mechanisms for transferring a decedent's property, satisfying outstanding debts and tax obligations, and distributing the remainder to heirs or beneficiaries. In Alabama, the primary governing statute is Title 43 of the Code of Alabama (1975), which was substantially modernized through Alabama's adoption of provisions modeled on the Uniform Probate Code (UPC), promulgated by the Uniform Law Commission.

Three instrument types define the primary classification boundaries:

1. Testamentary wills — Written instruments signed by the testator and attested by at least 2 witnesses, directing property disposition after death. Alabama Code § 43-8-131 specifies formal execution requirements.
2. Trusts — Fiduciary arrangements — revocable or irrevocable — where a trustee holds legal title for one or more beneficiaries. The Alabama Uniform Trust Code (AUTC), enacted in 2006 and codified at Title 19, Chapter 3B of the Code of Alabama, governs trust formation, administration, and modification.
3. Intestate estates — Estates where no valid will exists, governed by Alabama's intestate succession statutes at § 43-8-40 through § 43-8-58, which distribute assets in a fixed statutory order of priority among surviving relatives.

Scope limitation: This page addresses Alabama state law exclusively. Federal estate tax obligations — which apply to estates exceeding the federal exemption threshold ($13.61 million per individual for 2024, per the Internal Revenue Service) — are governed by the Internal Revenue Code, not Alabama statute. Multi-state estates involving real property in other jurisdictions are not covered here, nor are tribal lands or federal enclaves within Alabama's geographic boundaries. For the broader regulatory structure of Alabama's legal system, see the regulatory context for Alabama's legal system.

How it works

Probate administration in Alabama follows a structured sequence administered by the county probate court in the county where the decedent was domiciled at death.

Testate administration (with a will):

1. Filing for probate — The will is filed with the probate court within 5 years of the decedent's death (§ 43-8-161). The court determines whether the instrument meets statutory formality requirements.
2. Appointment of personal representative — The court appoints an executor named in the will, or an administrator if no executor is named or available. Bond may be required unless waived by the will.
3. Inventory and appraisal — The personal representative files an inventory of estate assets within 2 months of appointment under § 43-2-310.
4. Notice to creditors — Creditors must be notified; Alabama Code § 43-2-61 sets a claims filing period of 6 months from the grant of letters testamentary.
5. Payment of debts and taxes — Valid claims, administration expenses, and any applicable taxes are satisfied before distribution.
6. Final distribution and discharge — Remaining assets are distributed per the will's terms and the personal representative is discharged.

Intestate administration follows the same procedural sequence, with distribution determined by the statutory heir hierarchy rather than a testamentary instrument.

Trust administration generally bypasses probate entirely. A revocable living trust becomes irrevocable at the settlor's death; the successor trustee administers and distributes assets according to the trust instrument without court supervision, unless disputes arise. The AUTC at § 19-3B-201 through § 19-3B-205 addresses trust creation validity.

Alabama guardianship and conservatorship proceedings, though related to probate court jurisdiction, operate under a separate statutory framework and are not part of standard estate administration.

Common scenarios

Surviving spouse elections: Alabama Code § 43-8-70 grants a surviving spouse the right to elect against a will and claim a statutory elective share — 50% of the augmented estate — regardless of what the will provides. This right must be exercised within 6 months of probate filing.

Small estate affidavits: Estates with a gross value below $25,000 (excluding exempt property) may qualify for summary distribution under § 43-2-692, avoiding full probate administration. This threshold applies when no real property is involved and no petition for appointment of a personal representative has been filed.

Holographic wills: Alabama does not recognize holographic (handwritten, unwitnessed) wills. A will failing to meet the 2-witness attestation requirement of § 43-8-131 is void regardless of the testator's expressed intent — a notable distinction from the law in approximately 25 states that do recognize holographic instruments (per the Uniform Law Commission's state enactment tables).

Intestate succession order: Under § 43-8-40, property passes first to descendants, then to parents, then to siblings and their descendants, then to grandparents and their issue. A surviving spouse's share depends on whether descendants exist — if the decedent left children, the spouse and children share the estate; if no children, the spouse generally inherits the entire estate.

Decision boundaries

The choice among will-based, trust-based, or intestate transfer frameworks carries distinct procedural and practical implications.

For the broader Alabama legal landscape, including adjacent practice areas such as Alabama property law and Alabama family law, the Alabama Legal Services Authority home reference provides structured navigation across practice domains.

Attorney licensing standards applicable to estate planning practitioners are governed by the Alabama State Bar under Rule 5.5 of the Alabama Rules of Professional Conduct. The Alabama State Bar's Lawyer Referral Service maintains rosters of attorneys by practice area, including estate and probate law.

References

• Code of Alabama (1975), Title 43 — Wills and Decedents' Estates (Justia)
• Code of Alabama (1975), Title 19, Chapter 3B — Alabama Uniform Trust Code (Justia)
• Uniform Probate Code — Uniform Law Commission
• Uniform Trust Code — Uniform Law Commission
• Internal Revenue Service — Estate Tax
• Alabama State Bar — Public Resources
• Alabama Judicial System — Probate Courts