Last Will and Testament for Divorced Person Not Remarried with Adult and Minor Children
Note: This summary is not intended to be an all-inclusive discussion of the law of wills in Alabama, but does provide basic and other information. This discussion does not include handwritten wills.
Who may make a will: Any person 18 or more years of age who is of sound mind may make a will. 43-8-130.
Execution and signature of will; witnesses: Every will shall be in writing, signed by the testator and shall be signed by at least two persons each of whom witnessed either the signing or the testator's acknowledgment of the signature or of the will. 43-8-131.
Self-proved will: Any will may be simultaneously executed, attested, and made self-proved, by acknowledgment thereof by the testator and affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state where execution occurs and evidenced by the officer'scertificate, under official seal. The will you have found contains the Alabama self-proving affidavit. 43-8-132.
Who may witness will: (a) Any person generally competent to be a witness may act as a witness to a will. (b) A will or any provision thereof is not invalid because the will is signed by an interested witness. 43-8-134.
Choice of law as to validity of execution: A written will is valid if executed in compliance with Alabama law, or if its execution complies with the law at the time of execution of the place where the will is executed, or with the law of the place where at the time of execution or at the time of death the testator is domiciled, has a place of abode or is a national. 43-8-135.
Revocation by writing or by act; when witnesses required: (a) A will or any part thereof is revoked by a subsequent will which revokes the prior will or part expressly or by inconsistency. (b) A will is revoked by being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it by the testator or by another person in his presence by his consent and direction. If the physical act is by someone other than the testator, consent and direction of the testator must be proved by at least two witnesses. 43-8-136.
Revocation by divorce or annulment; revival by remarriage; no revocation by other changes or circumstances: If after executing a will the testator is divorced or his marriage annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, or guardian, unless the will expressly provides otherwise. Property prevented from passing to a former spouse because of revocation by divorce or annulment passes as if the former spouse failed to survive the decedent, and other provisions conferring some power or office on the former spouse are interpreted as if the spouse failed to survive the decedent. If provisions are revoked solely by this section, they are revived by testator's remarriage to the former spouse. 43-8-137.
Incorporation by reference: Any writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification. 43-8-139.
Who may have will probated: Upon the death of a testator, any executor, devisee, or legatee named in the will, or any person interested in the estate, or who has custody of such will may have the will proved before the proper probate court. 43-8-160.
Time limit for probate: Wills shall not be effective unless filed for probate within five years from the date of the death of the testator. 43-8-161.
Where will probated: Wills must be proved in the several probate courts as follows:
(1) When the testator, at the time of his death, was an inhabitant of the county, in the probate court of such county.
(2) When the testator, not being an inhabitant of the state, dies in the county, leaving assets therein, in the probate court of such county.
(3) When the testator, not being an inhabitant of the state, dies out of the county, leaving assets therein, in the probate of the county in which such assets, or any part thereof, are.
(4) When the testator, not being an inhabitant of the state, dies, not leaving assets therein, and assets thereafter come into any county, in the probate court of any county into which such assets are brought.
(5) In the probate court of the county designated by testator in the will if the testator owns property in such county at the time of his death. 43-8-162.
Duty of custodian of will after death of testator; liability: After the death of a testator and on request of an interested person, any person having custody of a will of the testator shall deliver it with reasonable promptness to a person able to secure its probate and if none is known, to an appropriate court. Any person who wilfully fails to deliver a will is liable to any person aggrieved for the damages which may be sustained by the failure. Any person who wilfully refuses or fails to deliver a will after being ordered by the court in a proceeding brought for the purpose of compelling delivery is subject to the penalty for contempt of court. 43-8-270.
