I had someone come into the office recently who wanted a will drawn up. During our conversation, he mentioned that he needed a will so the state would not get his property. While it is always a good idea to have a will, very rarely will the state ever get your property when you die.

If a person dies without a will, he is said to have died “intestate.” When this occurs, Alabama's “laws of intestacy” kick in to provide for distribution of the deceased person's, or “decedent's” property. These laws represent the Legislature's best guess as to what most people would want.

Under current law, any part of an estate that is not 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: 1) If the decedent didn't leave parents or children, the spouse gets everything; 2) 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; 3)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; and 4) 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: 1) Children and their descendants; 2) Parents; 3)Brothers and sisters, or, if all are deceased, nieces and nephews; 4) Grandparents, aunts, and uncles or, if all are deceased, to their descendants. If there is no family within these categories, then the decedent's property goes to the state of Alabama.

Obviously, most people have some family member in one or more of these categories who would inherit under Alabama's intestacy laws. So if you die without a will, in most cases, the state will not take an interest in your property. This doesn't mean, however, that you don't need a will.

Having a will provides many benefits to a decedent's heirs. Even if you are leaving everything to your children, you have the opportunity in a will to not only appoint an overseer or “executor,” but you also can relieve your heirs of the requirement to post a bond and/or file an inventory of your estate.

Another benefit from having a will is that land the passes ownership through a will acquires a stepped-up tax basis equal to the value of the land at the time of the decedent's death. For example, let's say you paid $50,000 for a piece of lakefront property in 1970 and it is worth $150,000 when you die. If you leave this land to your children in a will that is probated, their tax basis now becomes $150,000. So if they sell the property they pay capital gains tax on gains over $150,000, not $50,000. This means great tax savings for your heirs.