LAST WILL AND TESTAMENT

It is often suggested that everyone should have a will. At first impression, you would think that signing a Last Will and Testament won't do more than direct that your possessions be given to someone else at your death. But without a will, are you truly aware of what you are missing?

OLD KENTUCKY LAWS CONTROL INTESTATE ESTATES

If a person dies “intestate” or without a will in Kentucky, the administration or handling of the estate as well as the rules to determine who will inherit that person's property will come from laws dating back to 1942.

KENTUCKY PROBATE JUDGES DETERMINE WHO IS APPOINTED WHEN THERE IS NO WILL

Since no one was appointed in a will as Executor to manage the estate, it is usually left to a judge to decide which heir will be appointed as the Administrator of the estate unless all the heirs come to an agreement. In the case where there are competing requests for the appointment among the heirs, the judge is entitled to alternatively appoint a lawyer (known as the Public Administrator) to take control and handle the administration of the estate. The PA would be a total stranger to the heirs, yet he/she would be allowed to charge a reasonable fee for services rendered to the estate as allowed by Kentucky statute.

KENTUCKY LAWS CONTROL WHO INHERITS WHEN THERE IS NO WILL

In addition to controlling the process of appointing the personal representative for an intestate estate, Kentucky's laws of descent and distribution dictate the order that surviving heirs are entitled to inherit the assets. If the person dying (the decedent) has a child or children, they get everything. If there is no surviving child or children (or no surviving child or children from a predeceased child or children – a grandchild, that is), then all assets are inherited by the decedent's then living parents or parent, if only one. If a person dies without a surviving child or parent, his estate is inherited equally by his surviving siblings, if any (or the surviving child or children or any predeceased sibling – a niece or nephew). If, by chance, a decedent should die without being survived by a child, parent, or sibling (or a descendant of any predeceased child or sibling as mentioned above), then the estate would be inherited by his or her surviving spouse.

DYING WITHOUT A WILL IN KENTUCKY CAN COMPLICATE AN ESTATE

Here are a few of the other things that are likely to occur if a person dies without a will:

  • The Administrator will be required to acquire and post a fiduciary surety bond to guarantee the lawful performance of duties as required by Kentucky law unless waived by all heirs and/or approved by the judge,
  • Any real estate being sold as an estate asset will need to be approved by a written motion prepared and filed with the court and a certified order signed the judge that must be attached to the deed transferring the property,
  • In estates involving heirs who are under 18 years old, the judge may appoint a lawyer known as a Guardian-ad-Litem to represent the minor regarding any issue or concern that might require a decision to be made in the child's best interest,
  • In estates involving heirs who are under 18 years old, the judge may require that a separate estate be opened in the name of the minor child to hold the inherited assets (including money) and that annual financial accounting reports be filed every year by the person who is appointed to take change of the assets (even if the person is the minor child's other parent) OR ALTERNATIVELY, that the inherited assets be placed in a blocked bank account under court order until the child turns 18 years of age.

If you would like more information on Wills, you can contact us online or call today at 502-558-8576.