What is a Will?
A Will is the document where you state who gets your stuff when you die and is an important part of estate planning. The person who carries out your wishes is the Personal Representative; that person used to be called the Executor. Your Personal Representative does not make the decisions as to who gets what – you do in your legal Will. Your Personal Representative does not undertake his or her role until after you have died and thus has no say in anything as your Personal Representative until you have died and the Court has approved his or her appointment.
You can change your Will at any time by writing a new Will. Do not cross out or hand write changes into your old Will as that may invalidate it. If your Will cannot be found when you die, the presumption is that you destroyed it. Copies of Wills are almost never admitted into Court. You can change your Personal Representative when you write a new Will. After you sign a new Will you should destroy all old Wills.
It is important that your Will follow the law of the State in which it was written. A Will, valid under the laws of another State, is also valid in Kentucky. Such a Will, might however, take longer to Probate as the validity in another State would have to be proven. Similarly, a Will validly executed in Kentucky is valid in every other State under the Full Faith and Credit clause of the United States Constitution, Article IV, Section 1.
In Kentucky the requirement is to have the Will signed by the Testator [the person making the Will] in the presence of two disinterested witnesses [people who are not inheriting under the Will], who also see each other signing the Will, and have all signed in the presence of a Notary Public. A Notary is not actually required, but the absence of notarization will require the potential Personal Representative to produce the two witnesses to the signing of the Will, in Court before the Judge will admit the Will to Probate and appoint the Personal Representative. This creates issues when a witness is dead or cannot be located.
In order to make a Will, the Testator needs to be mentally competent. In Kentucky, the Testator only has to know the general nature of his or her property, to whom he or she is leaving the property, and not be under undue influence in the making of the Will. Kentucky Courts follow the “lucid interval” standard of determining competency, a very low threshold.
Handwritten Wills, known as Holographic Wills, are recognized in Kentucky but there are very specific requirements that if not followed to the letter will invalidate the Will. Holographic Wills provide full employment for lawyers. The same goes for internet Wills.
It is important to know that not all of your assets will pass by your Will. Assets that are held in joint ownership with right of survival [such as a house] or a bank account with a named beneficiary, life insurance policies, IRAs, paid on death accounts [POD] are examples of assets that do not pass by Will. It is therefore important to make sure that the assets that do not pass by Will go to the folks you choose. If you do not have a beneficiary designated on your life insurance policies or your IRA, or the beneficiary has died, that asset will usually be paid to your estate and then distributed according to the terms of your Will. If the joint owner of your home or your bank account has died, that asset will also be paid to your estate, and then distributed according to the terms of your Will.
Your Will should not be kept in a safety deposit box in the bank. Some banks seal the safety deposit box until the Personal Representative is appointed, but if the Will saying who the Personal Representative is is in the sealed box, there is a problem.
Your Will should be kept in a fireproof box or metal filing cabinet. Also, use common sense. Do not leave your Will accessible to someone who will inherit a greater share of your assets if your Will is mysteriously not found.
Most married people have “I love you” Wills. That is husband leaving everything to the wife and visa versa. While this is fine when both spouses are healthy, it is not a good idea to leave everything to a spouse who is in a Nursing Home and will not be coming home.
Why do I need a Will? Will my spouse get everything I own even without a Will?
If you do not have a Will, the State has a Will for you. If you die without a Will, all of the assets that would have passed by Will now pass by the laws of intestacy. These are rules that determine the order in which your descendants and others stand in line to inherit all that you own. Your spouse generally receives only half of your assets; if there are children, they get the other half. If you do not have children, your parents are next in line to get the second half of your assets. If parents are not alive, your siblings will inherit half of your assets. If none of the preceding are alive, your spouse gets the other half. If you do not like that order of things, you should have a Will. Writing a Will ensures that your assets go where you want them to go.
Since you do not need a Will until you are dead, and since you cannot write a Will when you are dead, it is important to write a Will while you are alive. The argument that “I will write a Will when I need it” is just an excuse. At death, you will have a Will. It is just a question whether you wrote it or the State of Kentucky wrote it for you.
If you have questions or would like to schedule a free consultation with us, please feel free to contact us, we’re here to help.