Do I Need a Will?
by Mandy Hicks
One of the most frequent things I hear from potential clients is “I don’t have much, so I don’t need a will.” If you do not have substantial assets, then you may be wondering if this is true. Of course, the answer is unique to you and your family situation. In some cases, where someone qualifies as a small estate and is survived by a spouse or children, then a will is only necessary if you want to change where your assets go under the default law. But in cases where a full probate is required, unintended consequences may arise where Kentucky statutes dictate how your assets are divided and distributed, not your own wishes via a will.
One of the most common misconceptions about Kentucky law is how your property is distributed after your death. Many people assume that your surviving spouse will inherit everything. But while a logical assumption, it is simply not the case in Kentucky – or many states actually. Your surviving spouse is only entitled to half of your assets; the other half go to your heirs-at-law according to Kentucky’s intestate statutes. To determine your heirs-at-law, we follow your family tree – first your children, then grandchildren, then up to your parents, then siblings, and so on. In situations where your spouse is your children’s’ other parent, then not creating a will may not result in a terrible situation for them. Your surviving spouse and children will still split your estate legally, but they’re likely to do so amicably and in a way that won’t burden their surviving parent.
But what about second marriages with children from the first marriage? In the past few months, I’ve administered several probates with the following scenario: the deceased had children from a prior marriage, was remarried at his death, the deceased solely owned the home he and his wife lived in, and the deceased did not leave a will. Now, according to Kentucky law, the surviving spouse and the deceased’s children from a prior marriage co-own the home. In one case, we were able to negotiate with the children to buy out their interest; but in others, the children have not been willing to sell to the surviving spouse. Had the deceased left a will, this situation could have been avoided and the surviving spouse better protected.
Writing a will is especially crucial where you are unmarried, but have a partner. Two of my current clients lived with their long-time partners for decades and just never transferred the house into both of their names. Under Kentucky law, without a will, the surviving partner is not entitled to any of the deceased’s property. In one of my cases, the deceased did write a handwritten will leaving all of his possessions to his partner. The problem? He did not name an executor to administer his estate. When an executor is not named in a will, Kentucky law requires the next-of-kin to be notified before anyone can be appointed by the court. If someone has close family – children, grandchildren, siblings – this is an obstacle, but not insurmountable. But in cases where the deceased has no known living relatives, this can be tricky, because Kentucky does not draw the line anywhere in your family tree – we will keep looking for a blood relative, no matter how far removed.
These are just a handful of scenarios that show how vital a well thought out and written will can be. At ELPO Law, we are committed to helping you protect your wishes and family in developing a plan that works best for you. Contact me anytime for more information or to get started with the process.