What happens if I do not have a will?

If you die without a will, the Kentucky Legislature has written one for you. Only a validly executed will can later control the disposition of your property from the statutory scheme of distribution.

For those who die without a will, Kentucky’s Statute of Descent and Distribution applies to distribute your property as follows:

  • The surviving spouse, if any, receives the first $7,500 in bank deposits or other personal property.
  • The surviving spouse also receives one-half (1/2) of the probate estate; that is, property which passes through the hands of the court appointed administrator.
  • The surviving spouse also receives one-half (1/2) of the real estate.
  • The remaining one-half (1/2) of the probate estates goes to the "heirs" of the deceased, as follows:
  • To children, whether born to or adopted by you and their descendants.
  • If no children, then to the deceased’s father and mother.
  • If none, then to brothers and sisters or their descendants.
  • If none, then to the deceased’s surviving spouse.
  • If none, then to the grandparents of the deceased, then to aunts and uncles, first cousins and then to still more remote relatives, without end.

Only if none of the above relatives survive the surviving spouse will the probate estate pass completely to the surviving spouse.

 

Conclusion:

Estate Planning is a highly complicated subject which should be attempted by you only in consultation with your attorney. Prior to consulting with your estate planning attorney, you should locate and organize a current financial statement, income tax returns for three immediate prior years, gift tax returns, divorce decrees, business agreements, partnership agreements, and any existing wills and trusts. This and additional information will be necessary for your estate planner to efficiently plan for accommodating your dispositive wishes as well as maximizing tax savings.

There are multiple complex technical rules regarding the execution of wills and trusts. The lay person who attempts to draft an estate plan does so at his or her peril.

 


 

Is every kind of property subject to Kentucky’s Law of Descent and Distribution?

Only "probate" assets are subject to this statute. Another category of property called “non-probate” assets, do not pass through the hands of the administrator and are not covered by the law of Descent and Distribution.  These “non-probate” assets include:

  • Joint bank accounts.
  • Pension plans and IRAs (where beneficiaries are designated).
  • Life insurance, which goes directly to the beneficiary named in the policy.
  • Joint and survivorship real estate, such as personal residence, which will pass to whoever lives the longest.

Federal estate and Kentucky Inheritance taxes apply to these kinds of non-probate assets; however, their disposition is not controlled by a will.  Sometimes, your wishes concerning property disposition and tax savings can be achieved by the use of re-titling assets, so that the benefits of joint survivorship ownership can be utilized.

 

Conclusion:

Estate Planning is a highly complicated subject, which should be attempted by you only in consultation with your attorney. Prior to consulting with your estate planning attorney, you should locate and organize a current financial statement, income tax returns for three immediate prior years, gift tax returns, divorce decrees, business agreements, partnership agreements, and any existing wills and trusts. This and additional information will be necessary for your estate planner to efficiently plan for accommodating your dispositive wishes as well as maximizing tax savings.

There are multiple complex technical rules regarding the execution of wills and trusts. The lay person who attempts to draft an estate plan does so at his or her peril.

 


 What are living wills and healthcare surrogate designations?

Since 1990, Kentucky law has permitted individuals to express their wishes regarding healthcare decisions in circumstances where irreversible illness makes likelihood of recovery remote, and where individuals wish to delegate to another the power to make such decisions. Living wills and healthcare surrogate designations are authorized and strictly regulated by status. They are distinct from wills and trusts, which only relate to the disposition of property at death.

Many Kentuckians have elected to sign living wills and healthcare surrogate designations. They have chosen to make a definite, written, legal expression of their wishes in the event of irreversible illness.

Living wills and healthcare surrogate designations are documents separate from wills, trusts and general powers of attorney. Many elect to include them in planning for their estates.

 

Conclusion:

Estate Planning is a highly complicated subject, which should be attempted by you only in consultation with your attorney. Prior to consulting with your estate planning attorney, you should locate and organize a current financial statement, income tax returns for three immediate prior years, gift tax returns, divorce decrees, business agreements, partnership agreements, and any existing wills and trusts. This and additional information will be necessary for your estate planner to efficiently plan for accommodating your dispositive wishes as well as maximizing tax savings.

There are multiple complex technical rules regarding the execution of wills and trusts. The lay person who attempts to draft an estate plan does so at his or her peril.

  


 Why should I have a will?

A will controls who receives your property. If there is no will, all of your probate estate will pass according to Kentucky’s law of Descent and Distribution, discussed above.

If there is no will, then your business, farm, family heirlooms and other assets will pass without specific direction to that person or those persons you may not intend to benefit. Likewise, without a will, charitable or religious gifts will not be carried out.

Similarly, valuable tax planning opportunities will have been lost. Favorable rules for special reduced valuation of family farms and businesses, if you qualify, will have been missed.

A will which waives the requirement of a surety bond on the executor is likely to save the estate hundreds of dollars.

  

Conclusion:

Estate Planning is a highly complicated subject, which should be attempted by you only in consultation with your attorney. Prior to consulting with your estate planning attorney, you should locate and organize a current financial statement, income tax returns for three immediate prior years, gift tax returns, divorce decrees, business agreements, partnership agreements, and any existing wills and trusts. This and additional information will be necessary for your estate planner to efficiently plan for accommodating your dispositive wishes as well as maximizing tax savings.

There are multiple complex technical rules regarding the execution of wills and trusts. The lay person who attempts to draft an estate plan does so at his or her peril.

 


 What can be done to avoid payment of burdensome Federal Estate Taxes?

The Federal Estate Tax (often called the death tax) has been the source of considerable political debate in recent years.  Though the tax was briefly repealed, it is still a concern for some estates.  Because of the unpredictability of this aspect of Federal law, it is especially important to consult with knowledgeable professionals who keep up with the rapidly changing laws.

Careful planning—and the use of any number of the tools available to estate planning professionals—is the best way to develop a plan that puts your estate in the most favorable position to avoid potential taxation.

 

Conclusion:

Estate Planning is a highly complicated subject, which should be attempted by you only in consultation with your attorney. Prior to consulting with your estate planning attorney, you should locate and organize a current financial statement, income tax returns for three immediate prior years, gift tax returns, divorce decrees, business agreements, partnership agreements, and any existing wills and trusts. This and additional information will be necessary for your estate planner to efficiently plan for accommodating your dispositive wishes as well as maximizing tax savings.

There are multiple complex technical rules regarding the execution of wills and trusts. The lay person who attempts to draft an estate plan does so at his or her peril.

 


 What gifts may I make tax-free?

As with the Federal Estate Tax, gift tax is also an area of Federal law that is in flux.  By consulting with an informed estate-planning professional, you may be able to transfer assets to family members or others without tax consequences.  Gifts to charities or to certain charitable trusts may offer significant estate tax-planning benefits to donors.  Gifts to individuals and to charities may impact your overall estate-planning so it is wise to consult a professional and to consider these gifts as a part of your estate plan.

 

Conclusion:

Estate Planning is a highly complicated subject, which should be attempted by you only in consultation with your attorney. Prior to consulting with your estate planning attorney, you should locate and organize a current financial statement, income tax returns for three immediate prior years, gift tax returns, divorce decrees, business agreements, partnership agreements, and any existing wills and trusts. This and additional information will be necessary for your estate planner to efficiently plan for accommodating your dispositive wishes as well as maximizing tax savings.

There are multiple complex technical rules regarding the execution of wills and trusts. The lay person who attempts to draft an estate plan does so at his or her peril.

 


 If my spouse and I die simultaneously, who will care for our minor children?

Unless a testamentary guardian is nominated in your wills, Kentucky Law sets out the order of preference of relatives who are entitled to qualify as Guardian of your children. That person who is first entitled to qualify may be the least qualified to serve. Furthermore, it may be a relative who you do not desire to serve as guardian.

 

Conclusion:

Estate Planning is a highly complicated subject, which should be attempted by you only in consultation with your attorney. Prior to consulting with your estate planning attorney, you should locate and organize a current financial statement, income tax returns for three immediate prior years, gift tax returns, divorce decrees, business agreements, partnership agreements, and any existing wills and trusts. This and additional information will be necessary for your estate planner to efficiently plan for accommodating your dispositive wishes as well as maximizing tax savings.

There are multiple complex technical rules regarding the execution of wills and trusts. The lay person who attempts to draft an estate plan does so at his or her peril.

 


 Why do I need a Durable General Power of Attorney?

You need such a written power of attorney in the event you become physically or mentally disabled, incapacitated, and unable to attend to important personal and business affairs. If you do not have a power of attorney, and you become disabled, no one, not even your spouse, has the power to legally act for you. This requires your spouse or children to petition Disability Court, requires your mental and physical examination, and a jury trial to determine whether you are completely or partially disabled. Necessarily, this proceeding involves great expense, inconvenience, and sometimes unpleasantness.

  

Conclusion:

Estate Planning is a highly complicated subject, which should be attempted by you only in consultation with your attorney. Prior to consulting with your estate planning attorney, you should locate and organize a current financial statement, income tax returns for three immediate prior years, gift tax returns, divorce decrees, business agreements, partnership agreements, and any existing wills and trusts. This and additional information will be necessary for your estate planner to efficiently plan for accommodating your dispositive wishes as well as maximizing tax savings.

There are multiple complex technical rules regarding the execution of wills and trusts. The lay person who attempts to draft an estate plan does so at his or her peril.