Wills in Kentucky

A properly executed will enables you to choose who gets your probate assets when you die.

Regardless of whether you opt for a will-based or trust-based estate plan, you will still need a will. So, a will is an essential estate planning document.

A will does not enable decisions on “how” nor “when” beneficiaries get your stuff. For these decisions, other estate planning documents, such as a revocable living trust, must be used.

Valid Will Requirements

There are various requirements to make a valid will in Kentucky, which are strictly enforced. So, if the requirements are not met then the default intestate laws will control where your stuff goes when you die.

Sound Mind

To make a will you need to have a “sound mind”— a term of art —and, typically you must be at least 18 years old.

A “sound mind” is a very low standard. It is lower than the capacity that the law requires to make contracts and also to make medical decisions.

Disinterested Witnesses

Additionally, a valid will must be signed by two disinterested witnesses, unless you write it entirely by hand. Such a handwritten will is referred to as a holographic will.

Notarization

While not a requirement, it is wise to have a will notarized. The notary will make things must easier down the road — not for you, as you’ll be dead — but, for your personal representative and your family.

A notarized will is referred to as a self-proved will. There is really no good reason to not take this extra step.

Probate Assets

A will only disposes of probate assets, which are all assets owned at death that are not distributed through other means.

Other means for distributing assets are called will substitutes.

For example, financial accounts, such as bank and retirement accounts, may include a payment on death designation. So, a designated individual will only need to present a death certificate to the financial institution and will not need the assistance of the probate court.

It is important to note that the designation will trump any contrary will provisions.

You have wide latitude in deciding who will receive your probate assets. (And, potentially, wider latitude in turning probate assets into non-probate assets with will substitutes).

Still, there are some restrictions. Most notably, you cannot disinherit a spouse, who may elect against a will.

Sentimental Items

You should address the disposition of sentimental items, which is more likely to be a point of conflict amongst beneficiaries without your guidance.

You should save those you leave behind from this possibility by addressing who should get items that have little monetary value but are in fact “priceless.” If they will be mad at someone, let it be you, not each other.

Residual Estate

Probate assets can be distributed to either a specific person or a class of persons, e.g., “children.” Probate assets not listed will be part of the residual estate, which can be passed to a specific person or a class of persons, with a residual clause.

In Kentucky, if there is no residual clause remaining assets will be distributed per stirpes. Other states use a per capita scheme by default. In either case, a will should state your preference.

Per Stirpes Distribution

To illustrate a per stirpes distribution, suppose you have two children, one who died after having two children of their own. In Kentucky, grandchild A and grandchild B will each inherit 25% of the residual estate. And, your second child will inherit 50% of it.

Now, suppose your second child had one child of their own before predeceasing you.

In this case, grandchild A and grandchild B would inherit 25% and grandchild C will inherit 50%.

Per Capita Distribution

The alternative to this distribution scheme is a per capita distribution, which would have all three grandchildren inherit equally.

Intestacy

Without a will, the intestacy laws of Kentucky will determine who receives your probate assets.

Intestacy is a matter of state law, though there are substantial similarities between the different states.

Now, few people should plan on dying intestate. Still, it’s not a bad idea to understand the default rules.

First, people do inevitably die intestate. Further, the spousal rights that apply in intestacy are also relevant to the estate of anyone who dies and leaves a spouse behind. This is because a surviving spouse can elect against a will and receive an elective share.

Now, subject to any spousal rights, groups of would-be inheritors inherit as a group and inherit everything if they are next in line.

The group at the top of this list is your children, who will equally share. So, if you have children, then they will receive everything that is not subject to spousal rights.

This is true for adult and minor children. Though, the latter’s control of assets will be entrusted to another until those minor children reach adulthood.

(Biological and adopted children count here. Stepchildren do not.)

If you have no living children or other descendants, then your parents are up to bat. Next, if you have no living parents, then your siblings, along with their descendants, are up.

If you have no living siblings, and no deceased sibling has any living descendants, then your surviving spouse will inherit.

For purposes here, we need not illustrate further. But, know that if there is no surviving spouse then the law provides for more remote kin.

Personal Representatives for Kentucky Probate

A personal representative is a fiduciary who administers your probate estate. Choose someone who has a longer life expectancy and who gets along with your [other] beneficiaries.

A successor personal representative should be named.