Estate planning is a vital step for every person, no matter what your 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.
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.
Based in Richmond, the estate planning attorneys of Ecton & Shannon, PLLC assist clients throughout central Kentucky with each of these elements of a complete estate plan.
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:
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 for the minor child.
Your estate planning 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.
If you die without a valid Will in Kentucky, both your personal property and your real property are distributed under a formula provided in the Kentucky Statutes. Each state has similar formulas if you die without a Will. Many individuals believe that, without a Will, 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.
An owner of real property does have the option of disposing of property by a valid Will. There are statutory protection provisions 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 to the surviving co-tenant and not subject to an individual’s Will.
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.
To speak with us about creating or modifying your estate plan or Will, we welcome you to contact Ecton & Shannon. We hope we can put our decades of legal experience to work to serve you.