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Kentucky Estate Planning FAQs

Below are some of the questions that the attorneys at Greta Hoffman & Associates encounter most frequently as they help individuals and families in northern Kentucky with wills, trusts, probate and other estate planning matters. If you have a need to create or modify an estate plan, contact us at our Florence office for assistance.

What are the requirements for a valid will in Kentucky?

According to Kentucky’s statute of wills, a will can be executed by any person of sound mind who is 18 years of age or over. The requirement of a sound mind basically means that the person making the will (the testator) understands that he or she is making a will and has an understanding of the estate the testator is disposing of through the will. The will must be in writing (a typed document counts as a writing) and either signed by the testator or signed by another person in the presence of and at the direction of the testator, if the testator is incapable of signing. The signing of the will must also be witnessed by at least two credible witnesses, who sign the will in the presence of the testator and each other.

Kentucky also recognizes the validity of a holographic will, which is a will completely written in the testator’s handwriting, and signed and dated by the testator. This type of will does not have to be witnessed in order to be valid.

Does a will need to be notarized?

If the will is signed in the presence of a notary who notarizes the document, then the document is considered self-proving and can be accepted by the probate court without further evidence being required. If the will is not notarized, the probate court may demand other evidence to prove the will, such as calling in the witnesses who signed the will to testify to the will’s authenticity. Even a notarized will can still be challenged or contested on various grounds, such as that the will was executed under duress or coercion, or as a result of fraud, or that there is another will in existence that should be accepted over the will submitted to probate.

What is the difference between a will and a living will?

A will is a document which disposes of a person’s estate, including any rights to real or personal property the testator is entitled to at death. The will may also accomplish other tasks, such as naming an executor for the estate or appointing a guardian for any minor children. A living will, on the other hand, is a document which directs how certain end-of-life decisions should be made on behalf of the living will’s creator, such as whether the person desires to be placed on life support or not. A living will or similar type of advanced healthcare directive is an important part of a comprehensive estate plan and should be considered at the same time that wills, trusts and other documents are created.

Should I have a will or a trust?

Many people prefer to dispose of their property through the use of one or more types of trusts, such as a revocable living trust. A trust offers many advantages that a will cannot provide. For instance, a trust does not have to be admitted into probate; a trust is private whereas the contents of a will are a matter of public record; and a trust is more difficult to challenge or contest than a will. Still, it is important to have a will in addition to any trusts one might have, in order to name an administrator for the estate, appoint a guardian for any children, and insure that any property of the estate not included in the trusts are accounted for and distributed in accordance with the testator’s wishes.

Can I avoid probate?

There are many ways to transfer property outside of probate, such as through the use of trusts, jointly titled property, and other documents with named beneficiaries or transfer-on-death or payable-on-death designations. The use of these vehicles can minimize the time and expense of probate and smooth the estate administration process. However, unless all property is disposed of through these devices, some probate proceeding may still be required. Also, in the case of certain small estates, Kentucky allows for a simplified procedure to administer the estate. Avoiding probate has certain advantages, but it takes careful planning to avoid probate altogether while also ensuring that all of the testator’s desires are met.

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