Radcliff Estate Planning Attorneys
Safeguarding the Futures of Our Hardin County Clients
Thinking about what will happen to you and your loved ones after you are gone can be an uncomfortable exercise. However, not taking any steps to protect your estate for future inevitabilities can lead to devastating consequences. Your loved ones deserve a plan.
Building a robust estate plan means considering every possibility and proactively deciding what will happen to your interests once you pass away. An estate plan can also work to protect you while you are still alive, especially in situations where you become temporarily or permanently incapacitated or otherwise unable to communicate.
Our Radcliff estate planning lawyers at Musselwhite Meinhart & Staples can work with you to build a strong estate plan that ensures your wishes are honored once you are gone. We can thoroughly evaluate your situation to determine your goals and advise on what estate planning tools may make the most sense to achieve them. Our team has over 100 years of legal experience and has a complete knowledge of the systems involved in validating and interpreting estate plans, including how to avoid probate.
Last Wills and Testaments
The last will and testament, or a will, is probably the most well-known element of estate planning. A will is an important tool that can dictate what happens to your interests after you pass away. With that said, the power of a will is limited, and its contents are typically subject to objections in probate. Everyone should have a will, but it should ideally be paired with other forms of estate planning.
A valid, properly formalized will allows you to do the following in the state of Kentucky:
- Name beneficiaries to your property and assets
- Name a legal guardian to any minor children
- Name a personal representative to manage and carry out the terms of the will
There are no limitations on who can receive your property. You can choose as many or as few individuals or organizations as you like; they can be family, friends, colleagues, or whoever else. Your chosen guardian may be subject to some additional scrutiny or even objections, so be careful in your selection.
In order for the contents of the will to be legally recognized, you will need to properly formalize it. In Kentucky, this requires meeting several criteria and completing several steps.
For a will to be a valid in the state of Kentucky, it must meet the following conditions:
- The testator must be a legal adult (18 years of age or older)
- The testator must be of sound mind at the time they drafted and signed the will
- The will must be signed by the testator or, if the testator is physically incapable of signing, be signed on their behalf at their direction by a witness
- The will must be signed in the presence of two additional witnesses
Kentucky does recognize “holographic” wills, which are handwritten. In order to be considered valid, the entirety of a holographic will must be written in the testator’s handwriting. It must also be properly signed and dated. The state does not recognize verbal wills: They must exist in some written form.
The state does not require wills to be notarized, but a notarized will is considered “self-proving” and will speed up the probate process. A court will immediately accept a will that has been notarized as sufficiently valid without further investigation.
If your will is not notarized, your choice of witnesses could prove vitally important. In order to establish a will’s validity, the probate court will seek to contact the witnesses to your signature once you pass away. If they are unable to locate your witnesses – or they refuse to testify they witnessed your signature – the contents of your will could be in jeopardy, especially if one or more parties are already objecting to its authenticity. Many testators will rely on their legal representatives to serve as their witnesses to avoid these types of problems.
You should also be careful in how you modify or revoke a will. If a change is minor in nature, you can attempt to amend your existing will through a codicil, though this will require the same formalizing steps as an entirely new will. Consequently, many choose to simply replace a will in its entirety. The most recent will
Note that divorce has an automatic and immediate effect on the contents of your will in Kentucky. Should you become legally separated, portions of your will are likely to become invalidated if they include any mention of your former spouse. It is important you promptly update your will following a divorce, particularly if you named your ex-spouse as a beneficiary to any property or as a guardian to your minor children.
Revocable Living Trusts
Understanding the difference between wills and trusts can be challenging, as they have fundamentally similar goals. Both allow you to determine what happens to your property after you pass away. Living trusts boast some significant advantages over wills, however.
A revocable living trust confers the following benefits:
- Its contents avoid the probate process
- Its contents are private
- Its conditions and terms are flexible
- It can take effect and help you in the event of incapacitation
- It can be revoked while you are still alive, if necessary
Unlike a will, a living trust is a private document whose substance is only the concern of the parties directly involved. A will, meanwhile, becomes a matter of public record once it is brought to probate.
For many, the most powerful benefit of a living trust is the ability to avoid probate. Probate is an expensive, resource-consuming process that can take months or sometimes even years to complete, and disputes can endanger the deceased’s wishes from being honored. The contents and orders of a living will cannot be objected to as the contents of a will can.
Unlike a will, a trust can operate at whatever pace and under whatever conditions its author pleases. A will aims to close out a person’s estate as expediently as possible. With a will, you name who gets your property, and your personal representative moves with the permission of probate court to facilitate the requests. With a trust, you might decide that you would like to leave an inheritance to a minor child – but only when they become of age. You can earmark specific uses for the money, too, like requiring the inheritance be used to fund a college education.
A revocable living trust can also assist in situations where you become incapacitated. Should you become injured or unable to communicate, your appointed trustee can immediately assume the necessary managerial duties necessary to maintaining your estate. Because the living trust is revocable, you will be able to object should you feel this provision is being abused and regain control.
Living trusts are adaptable to whatever situation your estate requires. Our Radcliff estate planning attorneys can assess your goals and help recommend how to build a revocable living trust that meets them.
Powers of Attorney
While the notion can be unpleasant to consider, the reality is we could become incapacitated at any time as a result of an unexpected injury or illness. It is essential to have a plan in place to manage your affairs while you are temporarily unable to communicate. Many accomplish this task through designating powers of attorney.
A power of attorney is legally obligated to act in your best interest within the boundaries you set. The two most common types are financial powers of attorney and medical powers of attorney.
A financial power of attorney, also called a durable power of attorney, helps manages your business affairs in cases where you are unable to do so. You can set specific conditions on when their powers take effect and the extent of their abilities.
The scope of a financial power of attorney will generally depend on the maintenance required of your estate and business holdings as well as your personal level of comfort. You might decide that you only want your financial power of attorney to pay bills and conduct routine transactions. If you deeply trust your appointed financial power of attorney, you might permit them to proceed with normal business operations while acting on your behalf and in line with interests you have explicitly outlined.
A medical power of attorney makes decisions for you involving your healthcare should you become incapacitated. Your chosen representative will often work under the mandates established in advanced healthcare directives, in which you state what you would like to happen in various scenarios where you are unable to communicate. For example, you may specify you do not wish to be resuscitated should your heart fail, or you may want the plug pulled if you enter a vegetative state.
Again, the scope of the medical power of attorney’s abilities are limited by what you direct. The role of a medical power of attorney is to communicate your explicit desires to your healthcare team and make sure those wishes are honored.
Not having powers of attorney in place can lead to significant problems. The reality is no one expects to become incapacitated, but it can happen to anyone, including younger adults who may not even be thinking about estate planning.
You should consider who would take the steps (and have the means and legal ability) to pay your bills and take care of your home were you to become unable to do so yourself. If you end up in a critical medical scenario without the ability to communicate, decisions about your care will occur without any of your input.
Establishing powers of attorney can give you and your loved ones peace of mind. Though your designated representatives will hopefully never have to act, you will know there is a plan in place should the unthinkable occur.
Guardianships and Conservatorships
When minor children lose their parents, or their parents are no longer able to safely take care of them, they will need a guardian and possibly a conservator to care for them and their interests. Guardianships and conservatorships can also become necessary for adults who become unable to care for themselves as a result of some physical or mental condition.
Guardianships and conservatorships often work hand-in-hand, but they are distinct entities with slightly different roles. A guardian protects a person, while a conservator protects a person’s property. Guardianships focus on the well-being and direct care of the individual, whether they be a child or adult; they make significant decisions about the person’s education, medical needs, place of residence, and end-of-life care. Conservatorships can become especially necessary if an individual has a great deal of complex business interests that require special attention to maintain. They work to manage income, pay debts, and protect assets, among other fiduciary duties.
Guardianships and conservatorships both require authorization from a state court. In the interest of preventing abuse or exploitation, candidates and their motivations are often heavily scrutinized. Kentucky tends to prefer immediate family members take on conservatorships or guardianships should it be determined they are necessary.
Why Not Having an Estate Plan Can Be Disastrous in Kentucky
Some people avoid building or even thinking about an estate plan until late in their life. Delaying estate planning is a huge mistake that can lead to numerous significant consequences for you and your loved ones.
Dying without a will or trust in place will subject the bulk of your estate to Kentucky intestacy laws. In other words, you will have no say whatsoever in what happens to your assets. Your property will be divided amongst your most immediate relatives, with preference given to any children and your spouse. If no living descendants can be found, your assets could even become property of the state.
Even if you have a living trust, you should still validate a will that can “catch” any property that did not make it into the trust before you pass. This keeps any stray assets from being subject to intestacy. Remember, a will also lets you appoint a guardian for any minor children and name a personal representative to manage the estate.
You should also regularly update your estate plan. Your work is not done once you have formalized a will or formed a trust, as the circumstances of your life could dramatically change your wishes for what should happen once you are gone. Plan to review the relevant documents every few years or after a significant life event, such as an interstate move, marriage or divorce, or the birth of a child. Not doing so could leave your loved ones with an outdated estate plan incompatible with your present wishes.
Get Help Building Your Estate Plan
We understand that thinking about what will happen to you and your property after you are gone can be challenging. Our Radcliff estate planning attorneys at Musselwhite Meinhart & Staples are determined to make building a robust plan as painless and efficient as possible. We consider our clients to be members of our family and are invested in the betterment and protection of their long-term futures. Our team can review any existing estate planning documents you may have before helping you with wills, living trusts, powers of attorney, and any other elements that could help safeguard you and your loved ones.
Our law firm provides a full range of legal services to help you and your family achieve your goals. We speak your language. We are here to help you understand your legal options, what to expect and what steps we can take to protect you.
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