Creating a last will and testament is crucial in planning the distribution of your estate (assets including real and personal property) after your death. Kentucky wills give the testator, the person writing the will, the opportunity to ensure that a spouse, children, and other loved ones are taken care of after his death. You may also choose to leave property or make other gifts to charitable organizations through your Kentucky will.
In contrast to a last will and testament, a living will, allowed by the Kentucky Living Will Directive Act of 1994, dictates instructions to be followed should you become incapacitated and incapable of making decisions regarding your health and medical care. Accordingly, a living will, if necessary, would take effect during a person’s life if necessary, while a last will and testament does not take effect until after the testator’s death.
Do You Need a Last Will and Testament?
Although a last will and testament is not legally required, without a will, state laws (called laws of intestacy) will determine the distribution of the deceased’s assets. The outcome may not coincide with the decedent's (the person who passed away) wishes, however, which means it is generally advisable to create a last will and testament.
One of the greatest benefits of having a last will and testament is that it allows the testator to choose the personal representative of the estate, the person who will be responsible for carrying out the wishes contained in the will; in the absence of a will, the courts would make the decision for you.
A testator can use a will for various purposes, but the most important is to express how assets such as real estate, vehicles, jewelry, business holdings, bank accounts, and cash should be divided upon the testator’s death. A Kentucky last will and testament can also allow you to name someone as the legal guardian of your children.
Before the terms of a will can be accepted, the will must be proven in probate court. Probate is the court-supervised process of distributing the estate of a deceased person. Once the will is proven valid in probate court, the executor must first request the court to be formally appointed as the personal representative of the state; the executor is then granted “Letters Testamentary” and can proceed with the distribution of assets according to the will's provisions.
Kentucky also has a simplified probate process that may apply if the estate is sufficiently small as defined by statute.
Intestacy: Dying Without a Will
Someone who dies without a will is called “intestate,” which invokes the laws of intestacy. The surviving spouse’s share in Kentucky is based on a doctrine called “dower and curtesy,” which provides that usually the surviving spouse inherits half of the decedent’s estate while the rest of the property passes to the decedent’s children, parents, or siblings. If there are no descendants, parents, or siblings of the decedent, the surviving spouse would inherit the entire estate.
In order to avoid to have control over the distribution of your assets and to avoid your estate falling under the laws of intestacy, it is vital to have a valid Kentucky will.
Exceptions to Ability to Distribute Property
Not all property you own can be distributed through a Kentucky will. For example, property that is owned in joint tenancy with the right of survivorship cannot be devised by will. Life insurance proceeds may also not be distributed through a will.
Form a Last Will in Kentucky
The basic requirements for a Kentucky last will and testament include the following:
- Age: The testator must be at least 18 years old.
- Capacity: The testator must be of sound mind.
- Signature: The will must be signed by the testator or by another person under his direction and in his presence.
- Witnesses: If the will is not wholly written by the testator, two witnesses must sign the will in the presence of the testator after the testator signs or acknowledges the will in their presence.
- Writing: Kentucky wills must be written.
- Beneficiaries: You may leave your assets to whomever you wish with your Kentucky will.
Other Kinds of Recognized Wills
Kentucky recognizes holographic, or handwritten, wills; such a will must be entirely in the testator’s handwriting and signed and dated by the testator in order to be valid.
Changing a Kentucky Last Will and Testament
A Kentucky last will and testament may be changed at any time before the testator’s death through a new will or a codicil, which is an addition or amendment that must be executed with the same formalities as a will in order for it to be valid.
Revoking a Kentucky Last Will and Testament
A Kentucky will may be revoked at any time by the testator before his death in the following ways:
(1) By subsequent will or codicil;
(2) By some writing declaring an intention to revoke the will or codicil and executed in the manner in which a will is required to be executed; or
(3) By the person who made the will, or some person in his presence and by his
direction, cutting, tearing, burning, obliterating, canceling, or destroying the will
or codicil, or the signature thereto, with the intent to revoke.
Note that in Kentucky, if you get divorced or if your marriage is annulled after the execution of your will, the following provision of Kentucky law applies:
[T]he divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, conservator or guardian, unless the will expressly provides otherwise.
You can protect your family by making a last will and LegalZoom can help. LegalZoom helps you create a last will online in three easy steps.