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Wills and Trusts (Estate Planning)

Estate planning is a vital step for every person, no matter what your family or financial situation is. What will happen to your money and property if you die or become incapacitated? Who will take care of your children, and how will they be provided for? Who will make sure that you are getting proper care as you age? Who will represent you or your family’s estate if probate litigation occurs? These are just some of the many issues that one needs to consider when formulating an estate plan.

We understand Your Will, Trust and Estate Planning needs

Without a skillful hand to plan or modify the documents that might be a part of your estate plan—such as wills, trusts, guardianships, powers of attorney, and health care directives—you and your family can incur unnecessary legal and financial expenses, as well as emotional stress.

What Is a Will?

A Will is a written document that directs the distribution of both your real and personal property owned by you at the time of your death, appoints someone to care for and distribute that property, recommends the appointment of a guardian for the care of your minor children, provides for asset management, tax savings benefits, and other transfer issues. The laws of the Commonwealth of Kentucky require:

  1. 1. You, the maker of the Will, must be at least eighteen (18) years of age.
  2. 2. You must be competent or of sound mind.
  3. 3. The document must be in writing.
  4. 4. Your name must be subscribed to the document.
  5. 5. If the complete Will is not in your own handwriting, it must be witnessed in accordance with state law.
  6. 6. At your death, the Will must be probated in the County District Court where you resided at the date of your death.

When Should You Make a Will?

A Will should best be planned and executed while the maker is in good health and is not subject to some type of emotional stress. You should not wait until a catastrophe or other compelling reason to make your decision regarding your Will. If you have minor children, you can provide a recommendation to the District Court for appointment of a guardian of the person and perhaps even the property of the minor child.

Who Should Draft a Will?

Your attorney should draft the Will. No sensible person would engage “just anyone” to fill teeth or take out an appendix. The proper drafting of a Will involves decisions requiring professional judgement acquired by years of study, training and experience. We can help you avoid many pitfalls and advise the course best suited for you.

What if You Die Without a Will?

If you die without a valid Will in Kentucky, as is the case in every other State of the United States, both your personal property and your real property are distributed under a formula provided in the Kentucky Statutes. Many individuals believe without a Will that all of their property passes to a surviving spouse, but that is not usually the case. Regarding personal property, your spouse would only receive one-half (1/2) of those assets, with the remaining one-half (1/2) passing to either your children or if there are none, then to your parent, or if there are no living parents, then to your brothers and sisters or if there are none, then finally back to the surviving spouse.

Therefore, the surviving spouse would typically only receive a complete distribution of personal property in the event that the deceased spouse left no heirs. If there were other heirs of the deceased spouse, the surviving spouse would only receive one-half (1/2) of the deceased spouse’s interest in personal property.

If an individual does not exercise their legal right to make a Will, the Courts will appoint an individual to supervise the estate administration process and to make distribution of assets. This may not be the preferred option for the decedent.

May a Person Dispose of Their Property in any way They Wish in a Will?

An owner of real property does have the option of disposing of property by a valid Will. There are statutory protection provision so that a deceased spouse may not disinherit a surviving spouse relating to marital property.

Likewise, joint property with rights of survivorship will pass automatically and not subject to an individual’s Will to the surviving co-tenant.

Can a Will be Changed?

A Will only becomes effective upon an individual’s death. As long as an individual is mentally competent, has a grasp of their assets and the desire for distribution of those assets, the individual may amend or modify their Will. The requirements to amend a Will and the formal execution of that amendment are the same as making a valid Will. In addition, provisions in a Will for the benefit of the spouse will be administered as if the spouse predeceased you in the event there is a dissolution of your marriage, but there are often other matters to consider.

There are many changes of circumstances that occur after the making of a Will which should dictate the consideration for amendment. Some of those changes are: dissolution of marriage, birth of children or grandchildren, changes in the nature and extent of property owned, and other valid concerns that may require an amendment to your Will.