Everybody knows it is smart to create a will for end of life planning. This is how we tell others what we want to happen with our property when we are no longer here to speak for ourselves. Not everybody is quick to plan for the inevitable, however. Among the 60% of Americans that do not have a will, most cite that they “have not gotten around to it,” or they do not believe they have enough assets to make it worth their while.
Failure to plan a will can frequently be a huge mistake. Kentucky's laws grant tremendous deference to a person's decisions made in a will, but none to wishes not included in a will. Without a will in place, a person's property falls under Kentucky's laws of intestate succession. The estate will also enter probate – the legal process for distributing an estate's assets to the decedent's heirs. Probate court can be an expensive and time-consuming experience, sometimes delaying an estate's distribution by months or even a year.
Assets Subject to Intestate Succession Laws in Kentucky
Generally, any property owned under a person's own name will be subject to the rules of intestate succession. If a person has a spouse, the spouse stands to collect half of the decedent's property, with the remainder passing on to any children. If there are no children, these remaining portions may pass on to siblings – or surviving parents if there are no siblings. Who gets what, and how, can be somewhat complex. The rules follow the same formula for everybody, however, regardless of family dynamics or what a person would have preferred.
This often creates issues where a person was married, but separated from their spouse. Even if they had been separated for years, the spouse stands to collect their spousal share under Kentucky law – to the lasting lament of the surviving children.
In some other situations, a child or sibling may be disfavored for some reason, or known to be a notorious spendthrift. Regardless, they will inherit an equal share to their siblings under intestate succession. Half-siblings will also inherit, since they share one parent with the decedent.
Adopted children can inherit just as biological children under the rules, but not foster children or stepchildren that were never adopted. Grandchildren, meanwhile, will only inherit through this system if their parents are no longer alive. Otherwise, the law presumes that their parents will receive a share and provide for their children accordingly.
Assets Not Subject to Intestate Succession Laws in Kentucky
Some property that would not traditionally pass through a will can pass on independently through their own mechanisms. This means the family does not have to worry about a probate court splitting them up through intestate succession rules. These items may include:
- Property in a living trust;
- IRA, 401(k), or other retirement accounts with named beneficiaries;
- Life insurance;
- Securities held in transfer-on-death accounts;
- Payable-on-death bank accounts;
- Property held in joint tenancy or tenancy by entirety;
- Property passing through “dower and curtesy” – where a surviving spouse without an ownership share in real property can have the property pass to them per Kentucky statute.
The laws and procedures surrounding dower and curtesy in Kentucky are unique and sometimes complicated. Most people are unaware of these provisions until it becomes an issue for their own family, in fact.
As you can see from some of these examples, when distribution of assets falls under Kentucky's laws on intestate succession instead of a will, the results might not be what a person and their family desired. Even if the distribution does match what you would like to see happen, intestate succession puts the estate into probate and can unnecessarily delay the distribution of one's estate.
If your goal is to maximize what your loved ones stand to inherit, while minimizing the troubles they will need to go through after you pass away, it is critical that you prepare a will. This is the simplest way to avoid the complex problems of intestacy.
The Attorneys at Darpel Elder Law are Here to Help You Plan a Will That Meets Your Goals
When it comes to the issues involved with intestate succession, why leave anything to chance? Preparation is the key to meeting your goals and making things easier on your family. The Northern Kentucky Elder Law Attorneys at Darpel Elder Law have years of estate planning experience and can help you and your family work through tough questions regarding wills, trusts, and estate planning tools. Don't hesitate to contact Darpel Elder Law with any questions you or your family may have. Call our office today at (859) 341-4100, or visit our website at www.darpelelderlaw.com.