What happens in Kentucky if I don’t have a will?

Written by Jim Worthington on September 2, 2018

We’ve learned that the Queen of Soul herself, Aretha Franklin, died without a will. For those of you wondering what that means for her family, the answer to that question depends on where she was a resident when she passed.

This article will answer the question for some hypothetical Kentuckians. The answer lies in the laws of something called intestate succession. The answer depends on who survived the person. Those survivors are called the heirs at law.

Under Kentucky law, if a person is survived by a spouse and children, the spouse receives the first $15,000 of personal property. After creditors are paid, the spouse receives one-half of the remaining  personal property and one-half of the real property. The surviving children divide the remaining assets. The share for any child under 18 is held by a guardian subject to the court’s approval for any expenditures. At the child’s 18^thbirthday, he or she gains control of the assets, whether they are worth thousands or millions of dollars.

Under Kentucky law, if a person is survived by children but no spouse, e.g., a divorced person, the children receive the first $15,000 of personal property. After creditors are paid, the children divide all of the remaining property. The guardianship rules for children under 18 apply in this case as well.

The clear lesson of these two scenarios is that persons with minor children need a will. Not having one could be viewed as parental malpractice.

Under Kentucky law, if a person is survived by a spouse but no children, the spouse receives the first $15,000 of personal property. After creditors are paid, the spouse receives one half of the remaining  personal property and one-half of the real property. The remaining assets pass to the person’s parents if they are alive. If the parents are not alive, the remaining assets pass to the person’s siblings, per stirpes. “Per stirpes” in this case means that the children of a deceased sibling take his or her share. It can get pretty complicated when there are pre-deceased persons in more than one generation but a deep dive into that complexity isn’t important for this article.

In all of the above scenarios, the $15,000 spousal or childrens’ exemption is Kentucky’s answer to the small estate provisions that some states have. If the person’s estate is less than $15,000 (plus the burial expenses, to be more precise), the survivors can file what’s called a petition to dispense with administration and avoid the need for a full-blown probate proceeding.

One of the sad facts of Kentucky probate occurs when a minor or young adult child dies. Under Kentucky law, if a person is survived only by his or her parents, there is no exemption. Creditors are paid first and then the parents receive all the remaining property. If the person had any assets whatsoever, a full-blown probate is required. That can take a further emotional toll on parents who have lost a child.

Before concluding, let’s look at two frequent questions.

Doeshaving a will save taxes?

Merely having a will does not save taxes. However, an estate plan that is designed to save taxes will almost certainly include a will. A will is needed even if the plan has a trust, for reasons explained here. But, the will itself does not save taxes. Looking at Aretha Franklin, there are reports that she had an $80 million estate. That may be reduced by almost $30 million in estate taxes, some of which could be avoided. But, the will would only have been a small part of that estate planning.

I’ve heard it’s harder to sell a house or other real property without a will. Why?

Kentucky law requires that administrators and administratrixes, the names for the personal representative when there is no will, obtain court approval to sell any real property. Unless all of the heirs at law consent, they must receive 20 days’ notice of a court hearing to approve the sale. And, even if they consent, there is a non-waivable 30-day waiting period after the court enters its order before the sale can take place. Any legal steps during that 30-day period, such as signing a deed, are void.

In conclusion, having a will makes things much easier for the surviving family. For parents of minor children, it is so important that if you don’t have one, you should make it an urgent project. For others, it just simply makes sense and is a courteous thing to do for your family. And, if you’re fortunate to have a large estate, you can leave much more to your family if you do some estate tax planning.