Estate Planning

If you die without a valid will while residing in the State of Alabama, you are said to have died "intestate."  In order to determine who will receive your property if you die intestate, the State of Alabama has established a number of laws (known as "intestacy laws" or "laws of intestate succession.") The primary statutes comprising these intestacy laws, or laws of intestate succession, are set forth below. For a more complete list, see Alabama intestacy Laws | Intestate Succession statutes.

 

 

Intestate estate generally

 Any part of the estate of a decedent not effectively disposed of by his will passes to his heirs as prescribed in the following sections of this chapter.

Code of Alabama, Section 43-8-40

 

Share of the spouse

The intestate share of the surviving spouse is as follows:

(1) If there is no surviving issue or parent of the decedent, the entire intestate estate;

(2) If there is no surviving issue but the decedent is survived by a parent or parents, the first $100,000.00 in value, plus one-half of the balance of the intestate estate;

(3) If there are surviving issue all of whom are issue of the surviving spouse also, the first $50,000.00 in value, plus one-half of
the balance of the intestate estate;

(4) If there are surviving issue one or more of whom are not issue of the surviving spouse, one-half of the intestate estate;

(5) If the estate is located in two or more states, the share shall not exceed in the aggregate the allowable amounts under this chapter.
Code of Alabama, Section 43-8-41

 

Share of heirs other than surviving spouse

The part of the intestate estate not passing to the surviving spouse under section 43-8-41, or the entire intestate estate if there is no surviving spouse, passes as follows:

(1) To the issue of the decedent; if they are all of the same degree of kinship to the decedent they take equally, but if of unequal degree, then those of more remote degree take by representation;

(2) If there is no surviving issue, to his parent or parents equally;

(3) If there is no surviving issue or parent, to the issue of the parents or either of them by representation;

(4) If there is no surviving issue, parent or issue of a parent, but the decedent is survived by one or more grandparents or issue of grandparents, half of the estate passes to the paternal grandparents if both survive, or to the surviving paternal grandparent, or to the issue of the paternal grandparents if both are deceased, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation; and the other half passes to the maternal relatives in the same manner; but if there be no surviving grandparent or issue of grandparent on either the paternal or the maternal side, the entire estate passes to the relatives on the other side in the same manner as the other half.
Code of Alabama, Section 43-8-41

 

Requirement that heir survive decedent for five days

Any person who fails to survive the decedent by five days is deemed to have predeceased the decedent for purposes of homestead allowance, the exempt property and intestate succession, and the decedent's heirs are determined accordingly. If the time of death of the decedent or of the person who would otherwise be an heir, or the times of death of both, cannot be determined, and it cannot be established that the person who would otherwise be an heir has survived the decedent by five days, it is deemed that the person failed to survive for the required period. This section is not to be applied where its application would result in a taking of intestate estate by the state under section 43-8-44.
Code of Alabama, Section 43-8-43

 

When estate passes to state

If there is no taker under the provisions of this article, the intestate estate passes to the state of Alabama.
Code of Alabama, Section 43-8-44

 

Division of estate where representation is involved

If representation is called for by this chapter, the estate is divided into as many shares as there are surviving heirs in the nearest degree of kinship and deceased persons in the same degree who left issue who survive the decedent, each surviving heir in the nearest degree receiving one share and the share of each deceased person in the same degree being divided among the issue of such deceased heir in the same manner.
Code of Alabama, Section 43-8-45



Inheritance by relatives of half blood

Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.
Code of Alabama, Section 43-8-46

 

Inheritance by afterborn heirs

Relative of the decedent conceived before his death but born thereafter inherit as if they had been born in the lifetime of the decedent.
Code of Alabama, Section 43-8-47

 

Parent and child relationship

If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person:

(1) An adopted person is the child of an adopting parent and not of the natural parents except that adoption of a child by the spouse of a natural parent has no effect on the right of the child to inherit from or through either natural parent;

(2) In cases not covered by subdivision (1) of this section, a person born out of wedlock is a child of the mother. That person is also a child of the father, if:a. The natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; orb. The paternity is established by an adjudication before the death of the father or is established thereafter by clear and convincing proof, but the paternity established under this paragraph is ineffective to qualify the father or his kindred to inherit from or through the child unless the father has openly treated the child as his, and has not refused to support the child.
Code of Alabama, Section 43-8-48

[Reference - Alabama's Intestacy laws]

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If you die without a valid will while residing in the State of California, you are said to have died "intestate."  In order to determine who will receive your property if you die intestate, the State of California has established a number of laws (known as "intestacy laws" or "laws of intestate succession.") The primary statutes comprising these intestacy laws, or laws of intestate succession, are set forth below. For a more complete list, see California intestacy Laws | Intestate Succession statutes.

 

 

Section 6400

Any part of the estate of a decedent not effectively disposed of by will passes to the decedent's heirs as prescribed in this part.

California Codes, Probate Code, Section 6400.

 
 

Section 6401

(a) As to community property, the intestate share of the surviving spouse is the one-half of the community property that belongs to the decedent under Section 100.

(b) As to quasi-community property, the intestate share of the surviving spouse is the one-half of the quasi-community
property that belongs to the decedent under Section 101.

(c) As to separate property, the intestate share of the surviving spouse or surviving domestic partner, as defined
in subdivision (b) of Section 37, is as follows:

          (1) The entire intestate estate if the decedent did not leave any surviving issue, parent, brother, sister, or issue of a deceased brother or sister.
          (2) One-half of the intestate estate in the following cases:
                    (A) Where the decedent leaves only one child or the issue of one deceased child.
                    (B) Where the decedent leaves no issue but leaves a parent or parents or their issue or the issue of either of them.

          (3) One-third of the intestate estate in the following cases:
                    (A) Where the decedent leaves more than one child.
                    (B) Where the decedent leaves one child and the issue of one or more deceased children.
                    (C) Where the decedent leaves issue of two or more deceased children.

California Codes, Probate Code, Section 6401.

 

Section 6402

Except as provided in Section 6402.5, the part of the intestate estate not passing to the surviving spouse or surviving domestic partner, as defined in subdivision (b) of Section 37, under Section 6401, or the entire intestate estate if there is no surviving spouse or domestic partner, passes as follows:

(a) To the issue of the decedent, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Section 240.

(b) If there is no surviving issue, to the decedent's parent or parents equally.

(c) If there is no surviving issue or parent, to the issue of the parents or either of them, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Section 240.

(d) If there is no surviving issue, parent or issue of a parent, but the decedent is survived by one or more grandparents or issue of grandparents, to the grandparent or grandparents equally, or to the issue of those grandparents if there is no surviving grandparent, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Section 240.

(e) If there is no surviving issue, parent or issue of a parent, grandparent or issue of a grandparent, but the decedent is survived by the issue of a predeceased spouse, to that issue, the issue taking equally if they are all of the same degree of kinship to the predeceased
spouse, but if of unequal degree those of more remote degree take in the manner provided in Section 240.

(f) If there is no surviving issue, parent or issue of a parent, grandparent or issue of a grandparent, or issue of a predeceased spouse, but the decedent is survived by next of kin, to the next of kin in equal degree, but where there are two or more collateral kindred in equal degree who claim through different ancestors, those who claim through the nearest ancestor are preferred to those claiming through an ancestor more remote.

(g) If there is no surviving next of kin of the decedent and no surviving issue of a predeceased spouse of the decedent, but the decedent is survived by the parents of a predeceased spouse or the issue of those parents, to the parent or parents equally, or to the issue of those parents if both are deceased, the issue taking equally if they are all of the same degree of kinship to the predeceased spouse, but if of unequal degree those of more remote degree take in the manner provided in Section 240.
California Intestacy Laws, Probate Code, Section 6402.

 

Section 6402.5

(a) For purposes of distributing real property under this section if the decedent had a predeceased spouse who died not more than 15 years before the decedent and there is no surviving spouse or issue of the decedent, the portion of the decedent's estate attributable to the decedent's predeceased spouse passes as follows:

          (1) If the decedent is survived by issue of the predeceased spouse, to the surviving issue of the predeceased spouse; if they are all of the same degree of kinship to the predeceased spouse they take equally, but if of unequal degree those of more remote degree take in the manner provided in Section 240.

          (2) If there is no surviving issue of the predeceased spouse but the decedent is survived by a parent or parents of the predeceased spouse, to the predeceased spouse's surviving parent or parents equally.

          (3) If there is no surviving issue or parent of the predeceased spouse but the decedent is survived by issue of a parent of the predeceased spouse, to the surviving issue of the parents of the predeceased spouse or either of them, the issue taking equally if they are all of the same degree of kinship to the predeceased spouse, but if of unequal degree those of more remote degree take in the manner provided in Section 240.

          (4) If the decedent is not survived by issue, parent, or issue of a parent of the predeceased spouse, to the next of kin of the decedent in the manner provided in Section 6402.

          (5) If the portion of the decedent's estate attributable to the decedent's predeceased spouse would otherwise escheat to the state because there is no kin of the decedent to take under Section 6402, the portion of the decedent's estate attributable to the predeceased spouse passes to the next of kin of the predeceased spouse who shall take in the same manner as the next of kin of the decedent take under Section 6402.

(b) For purposes of distributing personal property under this section if the decedent had a predeceased spouse who died not more than five years before the decedent, and there is no surviving spouse or issue of the decedent, the portion of the decedent's estate attributable to the decedent's predeceased spouse passes as follows:

          (1) If the decedent is survived by issue of the predeceased spouse, to the surviving issue of the predeceased spouse; if they are all of the same degree of kinship to the predeceased spouse they take equally, but if of unequal degree those of more remote degree take in the manner provided in Section 240.

          (2) If there is no surviving issue of the predeceased spouse but the decedent is survived by a parent or parents of the predeceased spouse, to the predeceased spouse's surviving parent or parents equally.

          (3) If there is no surviving issue or parent of the predeceased spouse but the decedent is survived by issue of a parent of the predeceased spouse, to the surviving issue of the parents of the predeceased spouse or either of them, the issue taking equally if they are all of the same degree of kinship to the predeceased spouse, but if of unequal degree those of more remote degree take in the manner provided in Section 240.

          (4) If the decedent is not survived by issue, parent, or issue of a parent of the predeceased spouse, to the next of kin of the decedent in the manner provided in Section 6402.

          (5) If the portion of the decedent's estate attributable to the decedent's predeceased spouse would otherwise escheat to the state because there is no kin of the decedent to take under Section 6402, the portion of the decedent's estate attributable to the predeceased spouse passes to the next of kin of the predeceased spouse who shall take in the same manner as the next of kin of the decedent take under Section 6402.

(c) For purposes of disposing of personal property under subdivision (b), the claimant heir bears the burden of proof to show the exact personal property to be disposed of to the heir.

(d) For purposes of providing notice under any provision of this code with respect to an estate that may include personal property subject to distribution under subdivision (b), if the aggregate fair market value of tangible and intangible personal property with a written record of title or ownership in the estate is believed in good faith by the petitioning party to be less than ten thousand dollars ($10,000), the petitioning party need not give notice to the issue or next of kin of the predeceased spouse. If the personal property is subsequently determined to have an aggregate fair market value in excess of ten thousand dollars ($10,000), notice shall be given to the issue or next of kin of the predeceased spouse as provided by law.

(e) For the purposes of disposing of property pursuant to subdivision (b), "personal property" means that personal property in which there is a written record of title or ownership and the value of which in the aggregate is ten thousand dollars ($10,000) or more.

(f) For the purposes of this section, the "portion of the decedent' s estate attributable to the decedent's predeceased spouse" means all of the following property in the decedent's estate:

          (1) One-half of the community property in existence at the time of the death of the predeceased spouse.

          (2) One-half of any community property, in existence at the time of death of the predeceased spouse, which was given to the decedent by the predeceased spouse by way of gift, descent, or devise.

          (3) That portion of any community property in which the predeceased spouse had any incident of ownership and which vested in the decedent upon the death of the predeceased spouse by right of survivorship.

          (4) Any separate property of the predeceased spouse which came to the decedent by gift, descent, or devise of the predeceased spouse or which vested in the decedent upon the death of the predeceased spouse by right of survivorship.

(g) For the purposes of this section, quasi-community property shall be treated the same as community property.

(h) For the purposes of this section:

          (1) Relatives of the predeceased spouse conceived before the decedent's death but born thereafter inherit as if they had been born in the lifetime of the decedent.

          (2) A person who is related to the predeceased spouse through two lines of relationship is entitled to only a single share based on the relationship which would entitle the person to the larger share.
California
Intestacy Laws, Probate Code, Section 6402.5.

 

Section 6403

(a) A person who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for the purpose of intestate succession, and the heirs are determined accordingly. If it cannot be established by clear and convincing evidence that a person who would otherwise be an heir has survived the decedent by 120 hours, it is deemed that the person failed to survive for the required period. The requirement of this section that a person who survives the decedent must survive the decedent by 120 hours does not apply if the application of the 120-hour survival requirement would result in the escheat of property to the state.

(b) This section does not apply to the case where any of the persons upon whose time of death the disposition of property depends died before January 1, 1990, and such case continues to be governed by the law applicable before January 1, 1990.
California Intestacy Laws, Probate Code, Section 6403.

 

Section 6404

Part 4 (commencing with Section 6800) (escheat) applies if there is no taker of the intestate estate under the provisions of this part.
California Intestacy Laws, Probate Code, Section 6404.

 

Other intestacy statutes

There are additional statutes pertaining to the distribution of intestate property in the State of California. To view those statutes, please click here.

 

 

[Reference - California Intestacy laws]

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If you die without a will, you are said to have died intestate. The word "intestate" is derived from the prefix "In" (meaning "not") plus the word "testatus" or "testate" (meaning "to make a will").  Today, all fifty states have laws that spell out how property is to be distributed when a person dies intestate; i.e., without a valid will.  These laws are generally referred to as the "laws of intestate succession."  In some cases, however, they are referred to as the "laws of descent and distribution," or simply as "intestacy laws."

Click on any state to view its intestacy laws

In modern usage, the word "intestate" or "intestacy" applies to any portion of your probate property (or probate estate") that is not effectively disposed of by a valid will. Keep in mind that your probate estate will only consist of property that is solely-owned by you at the time of your death. It does not include property that you and someone else own jointly with rights of survivorship, nor does it include any life insurance, annuities, or retirement plans in which you have designated a beneficiary, or any property that you own in a living trust. For more detailed information as to the types of property that become part of your probate estate, see How Property Passes Upon Death.

Even if you have a will, it is possible that some or all of your probate estate may be treated as intestate property. If, for example, your will is not admitted to probate because you didn't sign it, or because it wasn't properly witnessed, or because it was made while you were under the undue influence of some other person, or because you were not legally competent to make a will, then your will may be declared invalid.  In that case, you may be deemed to have died intestate and all of your probate property would be treated as intestate property. 

In certain cases, too, it's possible that your will may be admitted to probate but one or more provisions may be deemed invalid, either because those provisions were found to be the product of undue influence or because the beneficiaries named therein contested your will or were witnesses to the signing of your will. In any of those cases, you may be deemed to have died intestate with respect to the property disposed of by the invalid provisions of your will, and that property would be treated as intestate property. 

Intestate property, by definition, does not have a designated beneficiary, which makes it very difficult for anyone to determine who the rightful beneficiaries should be. Contrary to popular belief, however, no state wants to keep your property if you die intestate. In fact, each state has developed a set of laws that give your intestate property to those individuals who are most likely to be the "objects of your bounty." Of course, these laws are designed to accomodate the interests of all people residing within a state and, for that reason, may not be exactly what any one individual may want. These laws are known as "intestacy laws."  In some cases, these intestacy laws may be called the "laws of descent and distribution" or the "laws of intestate succession."

Although the intestacy laws or laws of intestate succession are quite similar from state to state, there are important differences, too. To find how a particular state distributes intestate property, click on that state from the map above to view its intestacy laws or laws of intestate succession.

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Contrary to popular belief, not all property passes through probate upon death. In fact, there are five (5) major types of property that an individual owns upon death (called "estate property"), and only one (1) of them (i.e., "solely-owned property") actually passes through probate.



Listed below are the five (5) major types of estate property, and how each type of estate property passes upon death.

How property is distributed upon death


Property owned
as joint tenants with right of
survivorship
(JTWROS)
passes
directly to the surviving
joint owner(s) upon the
death of an owner.

 


Property held in
a living trust
passes directly
to the 
beneficiaries
designated
under the
trust
instrument.

Solely-Owned
property passes
to beneficiaries
designated
under a will
or, if there is
no will, under
the laws of
intestacy.

Death benefits
payable under
an annuity or
life insurance
policy pass
directly to the
beneficiaries
designated
under the
annuity contract
or insurance
policy.

 

Death benefits
payable under
retirement plans
(including IRAs)
pass directly to
the beneficiaries
designated under
the retirement
plan.
Non-Probate
Property
Non-Probate
Property
Probate
Property
Non-Probate
Property
Non-Probate
Property

 

Jointly-Owned Property:

Property can be owned by one or more persons and/or entities.   When property is owned by more than one person or entity at the same time, the concurrent ownership is referred to as a co-ownership, or as a co-tenancy, or as a  joint tenancy.  Whatever term is used to describe property that is jointly-owned, two facts are clear:  First, the co-owners of property share certain rights to the property and to each other.  Those rights are largely defined by applicable law and, to some extent, by agreement among the co-owners.  Second, the terms used to describe the various types of concurrent ownership often have divergent meanings from one jurisdiction to another.  For example, many jurisdictions refer to a joint tenancy as a joint tenancy with right of survivorship, while others refer to a joint tenancy as tenants in common.  The distinction will become apparent from the discussion that follows:

Joint Tenancy with Right of Survivorship (JTWROS).   A joint tenancy with right of survivorship is a type of concurrent ownership in which the co-owners have a right of survivorship.  In other words, if one owner dies, then that owner's interest in the property passes automatically to the surviving joint owner or owners.  The deceased owner's interest terminates immediately upon death and cannot be inherited by his or her heirs.  As a result, jointly-owned property with right of survivorship does not pass under a will and does not pass through probate.

Unlike tenants in common, joint tenants have equal interests in the property.  Tenants in common often have unequal interests and/or unequal rights in the property, often owing to the amount contributed to the purchase price. 

This form of concurrent ownership of property is commonplace between a husband and wife.  It is also seen between a parent and a child or between other individuals where there is an expressed intent is to have the property pass immediately and by operation of law to the surviving joint owner.  When a joint tenancy with right of survivorship is intended to be created, the acronym JTWROS is often added to the title of the property.  Banks and brokerage firms often add this acronym to joint accounts.

Because a deceased joint owner's interest is terminated automatically upon death, many jurisdictions will require a clear intent to create this form of concurrent ownership before the courts will enforce it.  For example, a clear intent to create a joint tenancy with right of survivorship might be worded as follows:  "to A and B as joint tenants with right of survivorship, and not as tenants in common."  A shorter form may be acceptable in some jurisdictions; i.e., "to A and B as joint tenants."  In many jurisdictions, concurrent ownership between husband and wife may be presumed to create a joint tenancy with right of survivorship, while concurrent ownership between non-spouses is often presumed to create a tenancy in common and not a joint tenancy with right of survivorship.

Other Forms of Concurrent Ownership of Property.  There are two other forms of concurrently-owned property (or jointly-owned property) that you should be aware of.  The first is a Tenancy by the Entirety.  A Tenancy by the Entirety  is available only to a husband and wife. Like a JTWROS, a Tenancy by the Entirety also contains a right of survivorship so that, upon the death of one spouse, the entire property passes to the surviving spouse by operation of law.  The interest of the deceased spouse does not pass through probate and, accordingly, cannot pass under the deceased spouse's will or the laws of intestacy. 

The second is a Tenancy in Common. This is the default form of concurrently-owned property.  It is the common form of concurrent ownership when the owners are not husband and wife, or have contributed different amount in acquiring the property.  Many jurisdictions will classify a concurrent ownership as a tenancy in common when a joint tenancy with right of survivorship or a tenancy by the entirety fails for any reason.

 

Living Trust Property:

A trust established during your lifetime is a legal entity that is recognized as such by all 50 states and the federal government. The dispostion of property held in a living trust is controlled by the terms of the trust instrument, whether a declaration of trust or a trust agreement. It is not controlled by your will, it is not controlled by the intestacy laws of the state in which you are domiciled, and it does not become a part of your probate estate.

 

Solely-Owned Property:

All property that does not have a pre-designated beneficiary upon your death, becomes a part of your probate estate. Property that you own entirely by yourself (solely-owned property) is the most common form of probate property - for example, a bank account in your own name, a stock or bond in your own name, a piece of real estate in your own name, etc. But, other properties that you own at the time of your death may also become probate property. For example, any interest in property owned by you as a Tenant in Common with others becomes part of your probate estate. The same is true with any life insurance policies, annuity contracts, and retirement plans when you die without having designated a beneficiary or for some reason the designation you made is not effective. In those cases, the benefits payable under such insurance policies, annuity contracts, and/or retirement plans may be paid to your probate estate, to be disposed of along with your other probate property. 

If you have a valid will at the time of your death, then you are said to have died "testate" and your probate property will be distributed in accordance with the terms and provisions of your will. For the requirements to make a valid will in each state, click here. If you die without a valid will, then you are said to have died "intestate" and your probate property will be distributed in accordance with the intestacy laws in your state of domicile. In certain states, the intestacy laws may be referred to as the "laws of descent and distribution."  For the intestacy laws in all 50 states, click here.

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