No Will Means No Control
If you die without a will in Kentucky, your assets may not go where you want them to. Not only do you lose control of who should get what, but you may be creating major problems and extra expenses for your loved ones after your death.
If you die without an estate plan, it is called dying intestate. Your assets will be distributed according to Kentucky law of intestacy; and based on complicated formulas, the court will decide the way your assets will be allotted to your surviving relatives, and in which order.
After a death, your family deserves to focus on grieving and going on with their lives rather than dealing with financial worries. You can take the burden off them and ensure that you are doing the best for your family by good estate planning now that includes writing a will while you are well and able to think clearly and make good decisions.
At Bunch & Brock, our Kentucky estate planning attorney can help you make a will that makes sure your family will be taken care of in the manner that you choose. Having a properly drawn up will can not only avoid the costs and delays of going through the probate process, this can lessen the chances of its being contested and help prevent disputes that may arise among family members who do not agree with how assets are distributed.
What are Kentucky Inheritance Laws with No Will?
The Kentucky Revised Statutes (KRS chapter 391) govern the handling of a deceased person’s estate in the case of intestacy. How assets are distributed depends on factors such as whether you have a surviving, spouse, children, or other relatives. Only assets that would have passed through your will and that you own alone and in your own name are affected by intestate succession laws.
Assets That Are Not Affected by a Will
Any asset that is owned jointly with another party or where another party is named as a beneficiary will go directly to that party. Examples include:
- property held in a living trust
- life insurance and funds held in an IRA, 401(k), or other retirement account
- bank accounts and securities held in a transfer or payable-on-death account
- property you own with someone else in joint tenancy or tenancy by the entirety
- property that passes to a surviving spouse
- assets included in Kentucky’s “dower and curtesy.”
What is Kentucky Dower and Curtesy?
Kentucky has a peculiar set of laws called “dower and curtesy” that give the first $15,000 of personal property or money on hand directly to a surviving spouse, even before creditors are paid. After creditors are paid, the surviving spouse receives one-half (50%) of the deceased spouse’s personal property, one-half (50%) of real property, and one-third (33.3%) of real estate to use during their life.
In situations where there is no surviving spouse but there are surviving children, the children get the first $30,000 of the deceased’s personal property and, after creditors are paid, the children split the remaining property.
If you don’t have descendants, parents, or siblings, then your spouse inherits everything.
Taking into account the dower and curtesy laws, there are additional intestacy succession laws that depend on who are the other surviving descendants of the deceased, including children, grandchildren, great-grandchildren, parents, or siblings.
Who Will Inherit Without a Will in Kentucky?
In Kentucky, who will inherit without a will depends on factors such as whether or not you are married and whether or not you have children at the time of death. Situations that are considered include the following:
If you are unmarried, but have children, your children inherit everything. This includes adopted children, but not foster children or stepchildren if they were never legally adopted.
If you are married and have children, your spouse gets one-half of your property and your children get the other half. If you have more than one child, the half they receive will be divided equally among them.
If you are married, childless, and your parents are living, your spouse gets one-half of your property and your parents get the other half.
If you are unmarried and have no children, your parents inherit everything.
Children conceived by you but not born before your death will receive a share if they are born within ten months of your death.
If you were not married to your children’s mother when they were born, they will receive a share of your estate if you were not married because your marriage was found to be illegal or void, or if your paternity has been established under Kentucky law.
Foster children and stepchildren you never legally adopted will not automatically receive a share.
Children placed for adoption who were legally adopted by another family will not receive a share. However, if your biological children were adopted by your spouse, that won’t affect their inheritance.
Siblings also have inheritance rights when the person who dies is married but has no children or parents, or when the decedent has no spouse, children, or parents. In the rare situation when a person doesn’t have any even remotely related family, his or her property goes to the state.
Why Have a Will in Kentucky?
Perhaps even more important than property distribution, you need a will in Kentucky because wills are the tools by which parents can name a guardian for their children and set aside special consideration for beneficiaries with special needs. If a child’s parents die without a will, the court will decide on a guardian based on criteria similar to what is used in a custody case. Family members are usually preferred, and they have the right to file a petition for the appointment. If only one parent dies, the surviving parent retains custody of the child, even if the parents are divorced. If the parents were never married, the child’s other biological parent can petition, which will likely be granted unless he or she is found to be unfit. Is that what you want for your child?
In addition, a will is important because it enables you to choose your estate’s executor, the person responsible for carrying out your wishes as stated in your will. Also, when writing your will, you should make sure you have the following basic estate planning documents:
- A living will — This spells out your end-of-life wishes, including whether you want your life to be artificially prolonged.
- A durable power of attorney for health care – This names someone to act on your behalf if you become incapacitated and unable to make healthcare decisions and may be used in conjunction with a living will.
- A durable power of attorney for finances – This designates someone to take care of your finances if you become incapacitated and are unable to make financial decisions.
To make sure everything is done according to your wishes, you may also want to consider placing some assets in a living trust or to use other methods to avoid probate. Probate is a court-supervised legal process to settle an estate after someone’s death. A personal representative, called an executor, who is named in the will or appointed by the court if there is no will, is given the legal authority to gather and value assets, pay debts and taxes, and transfer assets to the people you wish to inherit them. Probate court supervises the distribution of assets to your creditors, heirs, and/or beneficiaries. Probate also refers to the judicial determination of whether a will is valid.
Just having a will is not the determining factor of whether an estate must be administered through the probate courts. The amount of assets you have and how the assets are titled are what determine whether probate is required. Your Kentucky estate planning lawyer can help you with all these situations.
When Can My Property Get Taken by the State?
Because Kentucky law is set up to get your property to even remote relatives, it is unlikely that the state will wind up taking it. However, if you die without a will and don’t have any family, the state will take your property. So, if you do not have family and you wish a favorite charity or other institution to inherit from your estate, be sure to have a will that states this.
Get Help from Our Estate Planning Lawyers
Laws of intestacy don’t always follow what would have been a decedent’s wishes. If you do not want Kentucky’s default intestacy laws to determine how your property is divided or who will raise your child, you should have a will, as well as other necessary documents, and possibly a living trust.
Dealing with a loved one’s estate can be a difficult time for the family. The experienced Kentucky estate planning lawyers at Bunch & Brock can help. We understand that each person’s estate is unique, and we have worked hard to protect the best interests of hundreds of clients faced with the situation you are in now. We are committed to providing each of our clients with a high level of personal service, and we will walk you through each of the steps that must be taken in making your estate plans.
Our Fayette County estate lawyers have 35 years of experience guiding people through the estate planning process efficiently and effectively. To get started, or if you have any questions about this topic, call Bunch & Brock at 859-254-5522
