It’s best to find out quickly whether the deceased person left a valid Alabama Last Will and Testament. If not, the person is said to have died intestate. Intestate and intestacy are terms used to refer to the condition of having died without a will.
Partial intestacy can also occur when a person has a will, but it does not dispose of all of his or her property. This is the result of poor drafting and comes up most often in wills prepared by non-lawyers.
When a person dies intestate, the Alabama laws of intestacy will kick in to provide for distribution of the intestate decedent’s assets. This scheme of distribution may be referred to as intestate succession, intestate distribution or the laws of intestacy. These laws represent the Alabama legislature’s best guess as to what most people would want to happen to their assets.
Under Alabama’s laws of intestate distribution, any part of an estate that is not effectively disposed of through a valid Last Will and Testament is distributed to the decedent’s heirs as follows:
- If the decedent is survived by a spouse, the following rules apply:
- If the decedent didn’t leave parents or children, the spouse gets everything.
- If the decedent was survived by parents but not by children, the spouse gets $100,000 and half of the balance of the decedent’s estate. The decedent’s parents get the remaining half.
- If the decedent had children who are also children of the surviving spouse, the surviving spouse gets $50,000 and one half of the balance of the decedent’s estate. The surviving children share the other half of the balance.
- If the decedent had living children that are not the children of the surviving spouse, the surviving spouse gets one half of the estate and the decedent’s children get the remaining half.
- If the decedent is not survived by a spouse, the estate passes to decedent’s heirs at law in the following order of priority:
- Children and their descendants;
- Brothers and sisters, or, if all are deceased, nieces and nephews;
- Grandparents, aunts, and uncles or, if all are deceased, to their descendants; and
- The State of Alabama.
Within the various categories of heirs, each descendant of equal degree inherits equally and descendants of unequal degree inherit by representation (dividing the share that their parents would have taken). So, for example, if a person dies with three living children, each child would get one-third. If one of the three children had died but left descendants (i.e., grandchildren of the decedent), those descendants would share in the deceased child’s one-third.
When several individuals are entitled to property under Alabama’s intestate laws, they take title as tenants in common in proportion to their respective rights. So, for example, if six children are entitled to inherit the decedent’s one piece of real estate, each child would have a one-sixth interest in the entire property. Note that this does not mean that each child would own one-sixth of the property (i.e., that the property itself is divided), but that each child has a one-sixth interest in the property as a whole.