• Kentucky Statutes 
  • CHAPTER 385 UNIFORM TRANSFERS TO MINORS ACT
  • TITLE XXXIII - ADMINISTRATION OF TRUSTS AND ESTATES
    • CHAPTER 386 ADMINISTRATION OF TRUSTS -- LEGAL INVESTMENTS -- UNIFORM PRINCIPAL AND INCOME ACT
      • KRS 386.093 Durable Powers of Attorney
    • CHAPTER 387 GUARDIANS -- CONSERVATORS -- CURATORS OF CONVICTS
    • CHAPTER 388 UNIFORM VETERANS' GUARDIANSHIP ACT
    • CHAPTER 389 SALES OF REALTY OF PERSONS UNDER DISABILITY (Superseded)
    • CHAPTER 389A FIDUCIAL AND JUDICIAL SALES OF REAL ESTATE
    • CHAPTER 390 (Not yet utilized.)
  • TITLE XXXIV - DESCENT, WILLS, AND ADMINISTRATION
    • CHAPTER 391 DESCENT AND DISTRIBUTION
    • CHAPTER 392 DOWER AND CURTESY
    • CHAPTER 393 ESCHEATS
    • CHAPTER 394 WILLS
    • CHAPTER 395 PERSONAL REPRESENTATIVES
    • CHAPTER 396 CLAIMS AGAINST DECEDENTS' ESTATES
    • CHAPTER 397 UNIFORM SIMULTANEOUS DEATH ACT
    • CHAPTERS 398 TO 400 (Not yet utilized.)
  • AOC Probate Forms (if not a direct link to probate then try this http://www.kycourts.net/forms/

     

• Kentucky Web Sites
  • Laws and Programs for Older Kentuckians

• Other Web Sites 
  • Estates, Wills, Probate, etc at MegaLaw.com
  • Estate Planning at About.com
    Living wills, powers of attorney, joint ownership, do it yourself materials, trusts, etc.
    Wills of the rich and famous, etc
  • EstatePlanningLinks.com - Extensive links to Estate Planning, Elder Law and Tax resources on the Internet for estate planning professionals and consumers.
  • Estate Planning With Help From the Web
  • FAQ on Wills & Trusts
  • FAQ on Estate Planning
  • Legal Information Institute (LII):Estate and Gift Tax,Estate Planning,Estates and Trusts
  • Living Wills
  • Wills on the Web - celebrities and ordinary people dating back to the 1600s.

• Do you need estate planning when federal estate tax is eliminated or reduced?
  Here are four areas you should be examined - even if taxation is not an issue.
  

  Do you need estate planning when federal estate tax is eliminated or reduced? Probably.

  
  Here are four areas you should examine - even if taxation is not an issue.
    
  Regardless of your financial condition, you should have estate planning even for non-tax purposes.  If you decide not to have a legally valid will, then you need to accept the fact that the Commonwealth of Kentucky (or some other state for that matter) will  'write a will for you' and make other important decisions for you regarding division of your property and deciding who will take care of your children should the other parent not survive you.

  • The following considerations come into play even when there are no taxes to be paid.
    • Will
      • Property distribution
      • Selection of guardian for minor children
      • Selection of executor
    • Life Insurance and retirement accounts
    • Power of Attorney
    • Living Will Directives

  Will

  • What is a will?  It is a legal document that controls the disposition of your probate assets when you die.  Probate assets include all the property you own at your death in your own name.  It does not include property which is disposed by another instrument such as life insurance proceeds and jointly owned property with rights of survivorship.
    • Life insurance proceeds and retirement accounts go to the beneficiary you designate in the policy.  
    • Jointly owned property with a right of survivorship will  automatically pass to the surviving joint owner or owners at the joint owner's death as indicated on the document creating the property interest (deed, account etc).  Examples would include real estate, bank accounts, automobiles, stock certificates, etc.
    • If you are the beneficiary of a trust, then whoever receives that interest, not to mention whether or not it can be passed on by you, will depend on the trust agreement.  An attorney should be consulted in this area to make sure you know what you have and what you can do with it.
    • Additional factors and considerations may affect how your property is disposed of making sure your wishes are satisfied such as -
      • recent divorce
      • adopted child
      • disinheriting someone
      • advancing the property to the beneficiary while still alive
      • self-proving clauses
      • what is included in the probate estate
      • effect of being a beneficiary of a trust
      • beneficiary's promises to take care of the parent,
      • owning property out of state
      • meeting the legal formalities of the will
      • taking into consideration government retirements as well as other retirements and annuities
      • do you want your children to share and share alike or have your grand-children to take their deceased parent's share?
      • and many other factors too numerous to mention here.
         
  • Why do you need a will? 
    • If you do not have a will, the Commonwealth of Kentucky or some other state will for all practical purposes write a will for you pursuant the laws of intestacy.  This may not be what your want.  Your personal property (anything other than real estate) will pass pursuant to the laws of the state where you reside at death; and your real property would pass pursuant to those laws of the state where the real estate is located at the time of your death. For the Kentucky statutes dealing with the descent and distribution of property, click here:  
    • Without a will, your property is distributed under the intestacy laws to particular groups of people.  For example, 
      • If you are married and died without a valid will as a Kentucky resident, then one-half of all of your real and personal property would be distributed to your surviving spouse under the laws of dower and curtesy.  Your remaining property (the other half) would then go to your children equally; and if no children, then to your father and mother, if living; and if no surviving parents, then to your brothers and sisters; and if no brothers and sisters surviving, then to a surviving spouse. 
        WHEW, did you catch all of that?
      • Each state's laws  of intestacy will vary, but in any event, the laws of intestacy are not tailored to meet your specific needs. 
         
    • With a will, you can designate who gets what and how much (subject to the surviving spouse's interests of curtesy and dower).
       
    • Other benefits of a will include the specific designation of someone whom you trust to administer your estate or be the guardian of your minor children.  
      • The administrator of your estate distributes the property as you designated in your will, and the selection of someone you trust can make things run smoothly and preserve the estate by avoiding unnecessary expenses.  You may wish to consider waiving surety costs and other fees to reduce expenses, but this decision will depend on your particular circumstances and you should consider other factors beyond just saving money.
      • A will allows you to designate a person to be the guardian of your minor children which gives you some influence on how they will be raised after the death of both parents.  Your designation of a guardian is given preference by the courts subject to the best interests of the child.
    •  20 reasons for having a valid will
      1. Make bequests to your surviving spouse in such a manner as to eliminate all Federal estate taxes;
      2. Make your spouse a beneficiary of all of your estate;
      3. Make your children from earlier marriage beneficiaries;
      4. Name a legal guardian for your minor children, particularly where that child's other parent does not survive or does not have legal custody;
      5. Name contingent guardians for your minor children;
      6. Create a trust to provide professional management of your estate (including non-probate assets such as life insurance proceeds and retirement funds) until your heirs reach an age of maturity; particularly if you are divorced and have minor children or if your spouse and you both die before all of your children reach the age of maturity. (This trust may be created in the will or through the use of a "pour over" provision where the trust is in separate document.);
      7. Give your executor specific direction with respect to the discharging of administrative costs and inheritance taxes;
      8. Direct your executor with respect to the discharge of debts in existence at the time of your death, including long-term mortgages;
      9. Make specific bequests to your spouse such as the home, furnishings, vehicles and insurance policies;
      10. Create a trust to provide for the professional management of many assets left to your surviving spouse;
      11. Make specific bequests of certain special items to your children;
      12. Make specific bequests to third parties;
      13. Make specific bequests to your favorite charities, sometimes only on the condition that your spouse and/or children do not survive me;
      14. Eliminate the possibility of a double probate of the same assets in a common disaster in which you die together with any beneficiary, or where your beneficiary dies within 120 hours of you;
      15. Name the person that you want to specifically serve as your executor;
      16. Name contingent executors;
      17. Waive bond and security requirements for your executor;
      18. Make special allocation of federal and/or state inheritance taxes;
      19. Allow your executor to sell assets to satisfy a cash bequest;
      20. Provide for alternative beneficiaries, if spouse, children or other beneficiaries fail to survive you.
  Life Insurance and retirement accounts.
  • Life insurance proceeds and retirement accounts pass by way of your beneficiary designation rather than your will.  This is said to pass outside of your will and is not part of the probate estate.  Although life insurance plays a significant role in estate planning for tax purposes such as providing for cash liquidity for paying tax obligations,  it also plays a very important role in replacing your lost earnings for your family.  Social Security, retirement accounts, annuities, etc. may not fill the void left by your loss of earnings.  Life insurance proceeds help safeguard your family from that financial loss and burden so that they can maintain the standard of living that you provided while alive.
  • Currently, life insurance proceeds go to the beneficiary free of income taxes.
  • Retirement accounts can present not only a significant asset of your estate, but provide you with the opportunity to defer income taxes.  Carefully structuring your beneficiary designation can optimize the value of retirement accounts.
  Power of Attorney.
  • A power of attorney permits you to designate a person whom you trust to act on your behalf in all matters other than medical decisions - buy and sell real estate, open accounts, buy a car, etc.  
  • You can set it up so that it does not become effective until you are disabled or is legally effective the minute you sign it.  However, the power of attorney must have statutory language in it under Kentucky law to be durable and effective upon a disability.  Otherwise, it would have no legal effect if you are unable to handle your own affairs - death or disability terminate a power of attorney unless specifically stated.
  • These 'durable' powers of attorney are useful devices to plan for a potential disability by avoiding the time, publicity and expense of family members needing to go to court to be appointed a conservator of a guardian over the person to manage his/her financial affairs because of the disability.
  Living Will Directive.
  • What is it?
    In Kentucky, you can use a living will directive to designate one or more persons to make health care decisions for you should you become incapacitated and unable to make those decisions for yourself.  This person is known as a "health care surrogate."
  • You can also make known in advance your desires regarding the use or withholding of life-prolonging treatment and the use of artificially provided nutrition and hydration if two physicians certify you as terminally ill or in a permanent coma.
  • You can also chose to use your body for anatomical gifts or medical research at your death.
  • With a living will directive, you can plan ahead and make these emotionally and difficult decisions known to your family and friends and relieve them of that burden later at a time of personal or medical crisis.
  • For more information on a living will directive, click here (Baptist Hospital East Web Site)
  Conclusion.
  • Estate planning is not just for the wealthy and the few; nor is it solely concerned with tax considerations and the disposition of property.
  • Estate planning is probably even more important for those with the smaller estate to insure that as much of their wealth goes to where it is needed rather than getting eaten up by unnecessary expenses.
  • The use of a will, life insurance, retirement accounts, power of attorney, and a living will directive serve as a foundation for any estate plan since they do address non-financial considerations that apply to almost everyone regardless of your financial condition, your family situation or commitments and your stage in life.
  • Discuss these with an attorney who can then prepare legally valid documents -
    • To insure your loved ones are taken care of the best way you can;
    • To preserve your property for your beneficiaries by avoiding fees and expenses of guardians and conservators, probate administration, and legal disputes regarding your wishes and intent.
    • To avoid placing the burden on your family regarding certain medical decisions when you are unable to make those yourself.

This short handout was prepared by attorney Michael Stevens.  It is not intended as a substitute for consulting with an attorney.  Your situation and needs may differ.