Frequently Asked Estate Planning Questions
Below are some of the questions that the attorneys at Hoffman Walker & Smith 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.
When is the right time to develop an estate plan?
If you have assets, death benefits, children, or family members with special needs for whom you would like to provide after your death, then NOW is the right time for you to develop your estate plan. If none of the above apply to you, then you may not need an estate plan.
What does a lawyer do when planning an estate?
Our estate planning attorneys will help you plan the designation of beneficiaries and titling of property, and will draft estate planning documents such as wills and trusts. Our goal is to minimize the tax and attorney fees of your estate after your death while maximizing the benefits to your heirs. In doing so, the estate planning attorneys at Hoffman Walker & Smith will help you determine what documents are necessary for you to provide for your loved ones while protecting yourself until death.
Other documents that may be drafted are powers of attorney or health care directives that appoint representatives to manage financial and medical decision making for you prior to your death. The drafting of these documents does not necessarily negate the need for probate, but oftentimes limits the amount of the assets that need to be probated, which typically gets the assets to your beneficiaries faster, and with less expense.
What happens if I don’t plan my estate?
If you have property at the time of your death, and die intestate (without a will), your estate will need to be probated, where the court will appoint someone as Administrator of the Estate. Preference is given to whomever the family agrees upon; however, sometimes a person’s credit history can be a problem for the administrator to be bonded. In a will, bonding can be waived.
Without a will, the court will force the distribution of property in the will according to the laws of descent, KRS 391.010-391.030. The only way to ensure the direction of your assets after death to the persons of your choosing is through the drafting of a will or trust.
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.
What is the difference between a will and a living will?
A will is a document that 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 that 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 health care 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.
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.
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 proceedings 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.
What if I just need a change to my estate plan?
Bring any prior estate planning documents that you have signed to your consultation. Our estate planning lawyers will consult with you to determine what you want to accomplish with your estate plan and will review your current documents to determine whether any changes are necessary. No unnecessary drafting will be done.
Whom should I name as my executor, POA, trustee, guardian and health care surrogate?
Typically, people name family members as:
- Executor to manage their estate
- Power of attorney to handle their financial and/or medical decisions before death
- Trustee to manage funds held for their children, family members, or other beneficiaries after death
- Guardian to care for their children after death
- Health care surrogates to make life or death medical decisions
For any of these positions that deal with money, we recommend that you appoint someone with strong moral judgment and financial skill. If you do not have a family member to manage these tasks for you, consider close friends, business associates, bankers, lawyers, or other persons with whom you have a good relationship. It is also helpful to name one or two alternates for each position in case your first choice is unable to serve for some reason. Naming alternates gives a longer life to your documents and prevents the court from having to choose someone for you.
For all of these positions, it is important to have a discussion with your appointee as to how you want them to manage things for you, especially regarding healthcare and child-rearing decisions.