What Happens When You Die Without a Will in Alabama

Understanding Intestacy, Probate Assets, and Surviving Spouse Rights

Guidance from a Birmingham, Alabama estate planning law firm.

When a person dies without a valid will in Alabama, state law — not family expectations — determines who inherits their property and in what amounts. Alabama’s intestacy laws apply only to certain assets that must go through the probate process, and they operate alongside important statutory protections for surviving spouses.

Understanding how intestacy works, which assets are subject to probate, and what rights a surviving spouse may have can help families avoid confusion, delay, and unintended outcomes.

What Is Intestacy?

Intestacy occurs when a person dies without a legally valid will. Under Alabama law, any probate property not disposed of by a will passes to heirs according to a distribution scheme established by the Alabama Legislature. See Ala. Code § 43-8-40.

In an intestate estate, the probate court oversees administration of the estate, appoints a personal representative (administrator), and ensures that assets are distributed in accordance with Alabama law.

Probate vs. Non-Probate Assets

Determining whether an asset is a probate or non-probate asset is critical, because Alabama’s intestacy laws apply only to assets that pass through probate.

Assets Subject to Probate

Probate assets are generally those that are:

• Owned solely by the decedent

• Not held in a trust

• Not jointly owned with right of survivorship

• Lacking a valid beneficiary designation

  
  

Common examples include:

• Real estate titled solely in the decedent’s name

• Vehicles, jewelry, and other personal property

• Bank accounts without payable-on-death (POD) or transfer-on-death (TOD) designations

• Life insurance policies without a surviving named beneficiary

  
  

These assets must pass through probate and are distributed under Alabama’s intestacy laws if there is no will.

Assets Not Subject to Probate

Certain assets pass automatically at death and are not affected by intestacy laws, including:

• Property titled in a revocable living trust

• Life insurance with a named beneficiary

• Retirement accounts (IRAs, 401(k)s) with designated beneficiaries

• Bank accounts with POD or TOD designations

• Jointly owned property with right of survivorship

  
  

Because these assets transfer by operation of law or contract, they do not go through probate and are not governed by Alabama intestacy statutes.

How Alabama Intestacy Laws Distribute Probate Property

Alabama’s intestacy laws are found in Ala. Code § 43-8-40 et seq. These laws prioritize family members, beginning with a surviving spouse.

If There Is a Surviving Spouse

(See Ala. Code § 43-8-41)

• Spouse only (no children or parents):

  
  

  The surviving spouse inherits 100% of the intestate estate.

  
  

• Spouse and surviving parents (no children):

  
  

  The spouse receives the first $100,000 plus one-half of the remaining balance, with the remainder passing to the parents.

  
  

• Spouse and children (no stepchildren):

  
  

  The spouse receives the first $50,000 plus one-half of the remaining estate, and the children share the rest.

  
  

• Spouse and children (stepchildren):

  
  

  The spouse receives one-half of the estate, and the children share the remaining half.

  
  

If There Is No Surviving Spouse

(See Ala. Code § 43-8-42)

• Property passes to the decedent’s children (or grandchildren if a child is deceased)

• If none, then to the parents

• If none, then to siblings and more remote relatives

• If no heirs exist, the estate escheats to — meaning becomes the property of — the State of Alabama

  
  

Surviving Spouse Rights and Allowances

In addition to any inheritance under intestacy, Alabama law provides statutory protections for surviving spouses to help support them during estate administration.

Homestead Allowance

• Amount: $15,000

  • Raised to $18,800 on July 1, 2023

• Reference: Ala. Code § 43-8-110

• Paid before other estate debts

• If there is no surviving spouse, minor or dependent children may claim the allowance jointly

  
  

Exempt Property Allowance

• Amount: Up to $7,500 in value

  • Raised to $9,400 on July 1, 2023

• Reference: Ala. Code § 43-8-111

• May include household furnishings, vehicles, appliances, and personal effects

• If there is no surviving spouse, the decedent’s children are entitled to the same value jointly

  
  

Family Allowance

• Amount: Up to $18,800 as of July 1, 2023

• Reference: Ala. Code § 43-8-112

• Provides support for the surviving spouse and minor dependent children during probate

• May be paid as a lump sum or in periodic payments

• Has priority over most claims, but not over the homestead allowance

  
  

Important: 

• These allowances generally must be affirmatively claimed during probate and are in addition to any intestate inheritance.

• Per Ala. Code § 43-8-116, the dollar amounts listed above are adjusted every three years. See the Treasury Department of Alabama for additional information.

  
  

Why Intestacy Can Lead to Unintended Results

Relying on intestacy laws can create significant challenges, including:

• Only probate assets are affected; non-probate assets pass automatically

• Stepchildren, unmarried partners, and non-adopted children generally do not inherit

• Probate court involvement can be time-consuming and costly

• Family members may disagree about managing or selling inherited property

• Estates without sufficient liquid assets may struggle to pay bills and expenses

Without proper planning, intestacy often fails to reflect a person’s true wishes.

Your Next Step

Relying on Alabama’s intestacy laws is risky. A comprehensive estate plan can help you:

• Ensure your assets go to the people you intend to benefit

• Provide greater protection for a surviving spouse

• Reduce delays and expenses associated with probate

• Minimize the risk of family conflict

  
  

At Provident Law / Estate Planning LLC, we help clients create estate plans that protect their families and their legacies. If you have questions or would like to begin the estate planning process, we would be happy to meet with you.

About the Author

Colin McMichen is an experienced attorney and the founder of Provident Law / Estate Planning LLC, a Birmingham, Alabama-based firm. With a focus on estate planning and probate law, Colin is dedicated to helping individuals and families in Alabama and Florida navigate complex legal matters with confidence.