Estate Planning FAQs
Whether deciding to establish an estate plan for the first time or revising an existing estate plan, you may have important questions about what to do regarding wills and trusts in your particular situation. Below are answers to some general questions the estate planning attorneys at John H. Ruby & Associates in Louisville frequently encounter as we assist people in estate planning in Jefferson and Oldham counties. If you need specific advice or assistance with a will, trust or related matter, please contact us at our office in Louisville to speak with one of our experienced estate planning lawyers.
What makes a will valid in Kentucky?
The person making the will, known as the testator, must be 18 years old or older and be of sound mind, meaning the person knows that he or she is making a will and understands the decisions he or she is making. The will must be written (or typed) and signed by the testator in front of two or more credible witnesses who also sign the will in each other’s presence and in the testator’s presence. If the testator cannot physically sign the will, he or she can direct another person to sign on his or her behalf.
A valid will can dispose of the person’s property to family, friends, charities, educational institutions, etc. The will can also name an executor and appoint a guardian for any minor children the testator may have.
What is a “self-proving” will?
In order to give effect to a will, it must first be submitted to the probate court and proven to be the proper, valid will of the testator. This generally requires contacting one of the witnesses who signed the will and having that person testify (in person or by affidavit) that the will admitted to probate is the one he or she witnessed. However, if at the time the will is signed and witnessed, it is also duly notarized, then it is considered to be “self-proving.” A self-proving will can be accepted by the probate court without having to call any witnesses or take any other steps to authenticate the will. Having the will notarized when it is executed saves time and money in the probate process.
What if the testator made the will by himself, and nobody was available to sign it?
Kentucky law recognizes the validity of what is known as a holographic will. This is a will which is written entirely in the testator’s own handwriting, including signature and date. A holographic will can be admitted to probate, although the court may need to call in a witness who is familiar with the testator’s handwriting to testify that the will is written in the testator’s own hand.
Is it better to have a will or a trust?
A trust can accomplish some of the same actions as a will, such as distributing property after death, although the trust does this in a different legal fashion. The main advantage of a trust is that property in a trust does not have to go through probate. Also, a trust document is private and confidential, while the contents of a will become a matter of public record when the will is submitted for probate. It is also more difficult to challenge the validity of a trust than it is to contest a will. It is certainly worthwhile to consider having one or more trusts as part of your estate plan and to talk these matters over with your estate planning attorney. You will still want to have a will to do certain things a trust cannot and to make sure all of your property is accounted for and disposed of according to your wishes.
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