This glossary covers the words that come up most often in estate planning, organized by topic so you can find what you need quickly. Whether you’re preparing for a first meeting with an estate planning attorney in Alabama, reading through a draft will, or helping an aging parent make sense of their documents, this is meant to be a reference you can come back to.
A note before we start: Alabama has its own rules on several of these topics, and those rules don’t always match what you’ll read in a general online article written for a national audience. Where that matters, we’ve flagged it.
Wills & Testamentary Documents
These are some of the most common terms you will see when creating, updating, or administering a will in Alabama.
Last Will and Testament: A written, signed legal document that directs how your property is distributed after death and names who will carry out those instructions. In Alabama, a will must generally be signed by the testator and witnessed by two competent witnesses to be valid.
Testator: The person who makes the will. Someone must be at least 18 and of sound mind to serve as a testator in Alabama.
Codicil: A formal amendment to an existing will. A codicil must be executed with the same formalities as the original will, signed and witnessed, to be legally effective.
Holographic Will: A handwritten will. Unlike some states, Alabama generally does not recognize an unwitnessed holographic will simply because it is handwritten. To be valid in Alabama, a handwritten will generally must satisfy the same execution requirements as any other will, including the required witnesses, unless another state’s law applies.
Executor (Personal Representative): The person named in a will to carry out its instructions, pay debts, and distribute property. Alabama’s probate code refers to this role as a “personal representative,” whether the estate has a will or not.
Intestate / Intestacy: The legal status of dying without a valid will. When someone dies intestate in Alabama, state law, not the family’s preferences, decides who inherits, following a fixed order set out in the Alabama Probate Code.
If you need to create a will or update an existing one, our Alabama will attorneys at Southern Estate Lawyers can help you draft a plan that reflects your wishes and meets Alabama’s legal requirements.
Trusts
These are some of the most common terms you will encounter when creating, funding, or administering a trust in Alabama.
Revocable Living Trust: A trust you create during your lifetime that you can change or cancel at any time. Assets properly transferred into a revocable living trust generally avoid probate at death, which is the main reason families use them.
Irrevocable Trust: A trust that generally cannot be changed or cancelled once it’s created. These are typically used for asset protection, tax planning, or long-term care planning, since giving up control is often what produces the legal benefit.
Grantor (Settlor): The person who creates and funds a trust. In a revocable living trust, the grantor is often also the trustee and the primary beneficiary during their lifetime.
Trustee: The person or institution responsible for managing trust assets according to the trust’s terms and in the best interest of the beneficiaries. A trustee has a legal duty, called a fiduciary duty, to act honestly and carefully.
Trust Funding: The process of actually retitling assets, bank accounts, real estate, investment accounts, into the name of the trust. An unfunded trust is one of the most common estate planning mistakes we see. The trust document exists, but if assets were never properly transferred into it, those assets may still have to go through the Alabama probate process unless they pass another way outside the estate.
Testamentary Trust: A trust created inside a will that only comes into existence after death, once the will is admitted to probate. These are often used to hold assets for minor children or beneficiaries who aren’t ready to manage an inheritance outright.
We regularly see trusts that were signed but never fully funded. If you need to create a trust, update an existing one, or make sure your assets are actually structured to work with it, our trust planning attorneys in Alabama can help you put the entire plan in place.
Probate & Estate Administration
These are some of the most common terms you will encounter when settling an estate or going through probate in Alabama.
Probate: The court-supervised process of validating a will, paying an estate’s debts, and distributing what’s left to beneficiaries. Alabama probate is governed primarily by Title 43 of the Alabama Code and is handled in the probate court of the county where the person lived.
Ancillary Probate: A second, separate probate proceeding required when someone owned real estate in a state other than where their primary estate is being probated. An Alabama resident who owns a vacation property in Florida, for example, may need probate opened in both states. For a closer look at how probate works when property is located in another state, read our article Ancillary Probate in Alabama: What Happens to Out-of-State Property?
Letters Testamentary: The official document issued by the probate court giving the personal representative legal authority to act on behalf of the estate, sell property, close accounts, and pay debts.
Summary Distribution (Small Estates): A simplified, court-supervised probate process available in Alabama for smaller estates. Rather than a standalone “affidavit” used in other states, Alabama requires a formal petition for Summary Distribution under the Revised Alabama Small Estates Act. This Act provides a streamlined probate procedure for qualifying estates consisting of personal property within the statutory small-estate limit. Eligibility depends on several requirements, including the nature and value of the estate, so not every smaller estate qualifies.
Probate comes with court filings, deadlines, creditor issues, and responsibilities that can be difficult to manage while a family is grieving. If you are handling an estate, our Alabama probate attorneys can manage the process from opening the estate through final distribution and step in if a dispute develops.
| Alabama Law Note
Alabama probate is governed by Title 43 of the Alabama Code, and trusts are governed by the Alabama Uniform Trust Code (Title 19, Chapter 3B). If you’ve moved to Alabama from another state, it’s worth having an Alabama attorney confirm your existing documents still work the way you expect them to here. |
Have Questions? Talk to an Alabama Estate Planning Lawyer
If you want more information about any of these terms or would rather ask your questions directly to a lawyer, we are here to help. Your initial consultation is free, so you can get clear answers about your situation before deciding what to do next.
Powers of Attorney & Advance Directives
These terms explain who can make financial or healthcare decisions for you if you become unable to make or communicate them yourself.
Power of Attorney (POA): A legal document that gives someone else, your agent, the authority to act on your behalf for financial or legal matters. The scope can be broad or limited to specific tasks.
Durable Power of Attorney: A power of attorney that remains valid even if you become incapacitated. Under the Alabama Uniform Power of Attorney Act, any financial power of attorney executed in the state is automatically presumed to be “durable” unless the document explicitly states that it terminates upon your incapacity. However, explicitly stating this durability remains best practice to ensure clarity with banks and institutions.
Agent (Attorney-in-Fact): The person you name in a power of attorney to act on your behalf. This is a role built on trust; an agent has real authority over your finances or property.
Advance Directive for Health Care: A document that lays out your wishes for medical treatment, and names someone to make health care decisions for you, if you’re unable to communicate those wishes yourself.
Living Will: A specific type of advance directive that states your wishes regarding life-sustaining treatment, such as artificial nutrition or mechanical ventilation, in cases of terminal illness or permanent unconsciousness.
Alabama Natural Death Act: The Alabama statute that governs advance directives for health care in this state, including the form your directive should follow to be recognized by hospitals and physicians here.
Having the right Alabama documents matters because a generic form may not clearly reflect your wishes or satisfy the state’s execution requirements. If you need a power of attorney or advance directive, our lawyers can prepare these documents as part of a plan for both incapacity and the future.
Guardianship & Conservatorship
Guardianship and conservatorship address who can make personal, medical, or financial decisions for someone who cannot manage those matters on their own.
Guardian: A person appointed by the court to make personal and health care decisions for someone who has been found legally incapacitated, whether that’s a minor child or an adult.
Conservator: A person appointed by the court to manage the financial affairs and property of someone who cannot manage those affairs themselves. A guardian and conservator can be the same person or different people, depending on the situation.
Incapacity: A legal determination, not just a medical diagnosis, that someone can no longer manage their own personal or financial affairs. Courts look at functional ability, not simply an illness or diagnosis, when making this finding.
Beneficiary Designations & Asset Transfer
These terms explain some of the ways property can pass directly to another person at death, often without going through probate.
Beneficiary Designation: The named recipient on a specific account, such as a life insurance policy, retirement account, or annuity. These designations override what your will says; a beneficiary form filled out twenty years ago can control an account regardless of your current will.
Payable-on-Death (POD): A designation on a bank account that names who receives the funds directly upon your death, bypassing probate for that account.
Transfer-on-Death (TOD): Similar to a POD designation, but used for investment portfolios, stocks, or brokerage accounts to pass ownership directly to a named beneficiary outside of probate. Alabama permits transfer-on-death beneficiary designations for certain securities and investment accounts, but it does not currently authorize transfer-on-death deeds for real estate or TOD beneficiary designations on vehicle titles. Other estate-planning and title-transfer methods may allow these assets to pass without a full probate proceeding.
Joint Tenancy with Right of Survivorship: A form of shared ownership where, when one owner dies, their share passes automatically to the surviving owner or owners, without going through probate.
Per Stirpes vs. Per Capita: Two different ways to divide an inheritance among descendants. “Per stirpes” divides a share by family branch, so a deceased child’s share passes to that child’s own children. “Per capita” divides the inheritance equally among all living descendants at the same generational level. The difference sounds technical, but it can significantly change who inherits what.
Get Estate Planning Guidance Near You
Whether you’re starting your first will or reviewing a plan you haven’t looked at in years, our Alabama team at Southern Estate Lawyers can walk you through exactly which of these terms apply to your family and why. We meet clients across the state at three convenient locations.
- Birmingham: 4505 Pine Tree Circle, Suite 121, Birmingham, AL 35243
- Foley: 218 North Alston Street, Foley, AL 36535
- Mobile: 6001 Airport Boulevard, Suite 200B, Mobile, AL 36608
Call us at (205) 990-7000 to schedule a consultation at any of our three offices, or to ask us directly which documents make sense for your situation.
Frequently Asked Questions
These FAQs answer some of the most common questions Alabama families have about wills, trusts, probate, and estate planning.
Do I need an estate planning lawyer in Alabama?
You are not legally required to hire a lawyer for every estate planning document, but working with an Alabama estate planning attorney can help ensure your will, trust, powers of attorney, beneficiary designations, and other documents work together and meet state requirements. Small drafting or execution mistakes can create problems later, especially if a will is challenged or an estate goes through probate.
What’s the real difference between a will and a trust?
A will takes effect after death and generally goes through probate. A properly funded revocable living trust can often avoid probate altogether and may offer more privacy, since probate records are public and trust administration typically is not.
Does Alabama recognize a will I wrote by hand?
Simply writing a will by hand does not make it valid in Alabama. A handwritten will generally must satisfy Alabama’s normal execution requirements, including the required witnesses, unless another state’s law applies.
What actually happens if I die without a will in Alabama?
Your estate is distributed according to Alabama’s intestacy statutes, a fixed formula based on your surviving spouse, children, and other relatives. It may not reflect what you would have chosen, and it does not account for stepchildren, unmarried partners, or specific wishes about personal property unless state law happens to align with them.
Can the same person be my executor, trustee, and power of attorney?
Often, yes. The same trusted person may serve in more than one role, but each position carries different responsibilities and may become active at a different time. The right choice depends on the person’s judgment, availability, financial ability, and relationship with the other beneficiaries.
Do I need an estate plan if I do not own many assets?
Usually, estate planning is about more than how much property you own. A will can address who receives your probate property and who you want to serve as guardian for minor children, while powers of attorney and advance directives can determine who acts for you if you become unable to make financial or medical decisions yourself.
