Information from the County Attorney's Office
By Steven J. Franzen, Campbell County Attorney
Clients often ask about what happens to their property and their minor children in Kentucky if they die without having a will. In this article, I will briefly discuss how property passes under Kentucky law if someone dies without a will and who would raise the children and handle their funds if a guardian is not appointed in the will.
Under Kentucky law, if a person dies without a will, a surviving spouse is first of all entitled to one-half of all real property and one-half of all personal property after payment of all bills and expenses.
The remaining one-half that does not pass to a surviving spouse would pass first of all to surviving children and grandchildren, if none, then to surviving parents, if none, then to surviving brothers and sisters and their children and finally if there are none of the above, then the remaining one-half of all land and personal property would pass to the surviving spouse.
If a person dies without a will and there are no surviving children, grandchildren, parents, brothers, sisters, nieces, nephews, or spouse, then the property would pass to grandparents, then aunts, uncles and cousins, and then on down the line to more distant relatives. Property would only go to the State of Kentucky if no relatives whatsoever can be found.
A somewhat related issue is whether one spouse can completely cut out the other spouse from a will and leave everything to the children or others. This might very well be attempted in a second marriage where someone might want to leave all their property to their children by their first marriage rather than their second spouse. Under Kentucky law, a surviving spouse has the right to renounce the provisions of the will of the deceased spouse and take a one-third share of any real estate owned by the deceased spouse and a one-half share of all personal property owned by the deceased spouse.
It should be noted that the above discussion and provisions apply only to property owned individually by the deceased person and not to jointly owned property that is held in survivorship. Most couples have all of their real estate, bank accounts, etc., jointly in both names with the right of survivorship. All such property would pass directly to the surviving spouse regardless of whether or not there was a will.
Also, the provisions of a Last Will and Testament or the above noted rules about how property passes without a will would not apply to any situation where there is a designated beneficiary of the property such as with life insurance proceeds or retirement benefits.
Although the discussions above have dealt just with the passing of property without a will, a much more important reason for having a will is to designate who will raise minor children and who will handle the property of the minor children. A Court will generally appoint the Guardian to raise the children and the Guardian or Trustee to handle their property as has been requested in the Last Will and Testament. If no one has been designated in a Will, then the Court would appoint whoever would apply to the Court to be appointed as Guardian and/or Trustee for the minor children. That person may or may not be someone you would have liked or approved of.
If you have any topics you would like to have covered in this column, please contact my office by e-mail at countyattorney@campbellcountyky.org, by phone at 491-7700 or by regular mail addressed to 319 York Street, Newport, Kentucky 41071.