Tuesday, May 22, 2012

You Should Have A Last Will and Testament.

         The following is why you should have a will.  Not next year.  Not after you get more assets.  If you are married, or if you have a child, regardless of your marital status, you should have a will.  If you don't get me to draft your wills, get some other lawyer.  But you should get it done.  It is the responsible thing to do.
        In Kentucky, if you die without a will, your spouse does NOT automatically get all of your assets.  When a person dies “intestate” (which means they die without a will), the laws of intestacy applies.  This great Commonwealth has two (2) intestacy statutes for the succession of property – one for real estate and one for personal property.  But the succession order is the same.  Pursuant to KRS 391.010, the first people to inherit your property in Kentucky would be your children and descendants.  If you have no children or descendents, your parents would take the property.  If your parents have predeceased you (they die before you die), your brothers or sisters would inherit.  Only if none of the preceding situations were applicable, would your spouse inherit all of your property under the law of intestacy in Kentucky.  That’s right – your spouse is fourth in line.  After children, parents, and siblings.
            That doesn’t mean your spouse would get nothing at all.
           If the assets were marital assets, obviously the surviving spouse’s portion of assets would not be passed through the decedent’s (dead person) estate.  And the spouse would be entitled to a dower or curtesy share.  This means your spouse might have to fight in court to get what you wanted them to have in the first place.  If you die in Kentucky without a will, your spouse isn’t automatically entitled to all of your assets.  That is why EVERYONE who is married (and everyone who has a child regardless of their marital status) should have a will.
         Now let's get complicated.
            About this whole “survivorship” business - when a spouse is cut out of a will, or a spouse believes they should have received more than what the testator or testatrix (person who made a will, male or female, respectively) gave them under the will, they can contest the will.  KRS 392.020 defines the dower and curtesy interest of a surviving spouse.  Under this law, a surviving spouse gets an absolute interest in ½ of the deceased spouse’s real estate and personal property, plus 1/3 of real estate held by the decedent during marriage but not at the time of death (which gets complicated).
            Unless another rule of law carved out an exception – like KRS 391.030 which grants the $15,000 exemption.  So maybe if an estate was worth less than $15,000 and there was no real estate, then yes, a spouse may be entitled to all of it.  But absent a strange circumstance like this, if a judge were to give literally ALL of the decedent’s assets to a spouse, including real estate, and the decedent had a valid will which did not authorize the same, it would probably be an abuse of the judge’s discretion. 

            But all of these circumstances distract from my point.  These circumstances are for people who don’t want their spouse to have much, and their spouse has to fight for more.  That is the slim minority of circumstances.  The majority of couples want something very simple to happen: If I die, I want everything to go to my spouse.  If my spouse predeceases me, I want everything to be held in trust for my children.  Simple.  Done.
            If you are married, and you want your assets to go to your spouse, don’t make your spouse fight for the assets after you are dead.  Have a lawyer draft a will for you.

         If you are married, or you have a child, you should have a will.  Call the attorneys at Simms & Reed, PLLC, for a free consultation today.  It isn't expensive and you'll be glad you got it out of the way.  You can reach us at 502.618.4949.  Get some piece of mind for the future.

and get...

Results.  As fast as the law will allow.

Questions answered in this blog post: Why do I need a last will and testament; how can I find a good Louisville probate lawyer; how can I find a good Louisville estate planning lawyer; how can I find a Louisville lawyer for drafting/making wills and last will and testaments; what is "intestate"; what is "testate"; what is the difference between dying testate and intestate; what is a decedent; what happens to my stuff if I die?

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