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STATE BY STATE DIFFERENCES IN ESTATE PLANNING: LAST WILL AND TESTAMENT

If you read last month’s post, you know that estate planning laws are state specific and there are some estate planning tools that can be used in one state and not others. Differences in estate planning law involve the allowance for certain estate planning actions, such as Transfer on Death (TOD) Designation Affidavits for real estate. TOD Affidavits are legal in Ohio, but are not available in Kentucky. However, there are additional differences in estate planning law when comparing Ohio and Kentucky. One very important difference involves the requirements for a properly executed Last Will and Testament.

A Last Will and Testament is a legal document that expresses the testator’s wishes as to who should receive their property after their death and who should serve as their Executor or representative of their estate. In Ohio, Last Will and Testaments must be in writing, whether handwritten or typewritten, and signed at the end of the document by the testator. The testator must sign the document in front of two competent witnesses (ORC §2107.03). The double witness requirement cannot be replaced by a notary public. If the testator’s signature is notarized but not witnessed, the Last Will and Testament is invalid. In Kentucky, the testator must sign their Last Will and Testament with heightened requirements. The document must be in writing and signed by the testator in front of two credible witnesses if the will is not wholly written by the testator (KRS §394.040). Kentucky law also requires Last Will and Testaments to be self-proven. A self-proven Last Will and Testament is one that the testator and both witnesses signed their statements in front of a notary public who signs and properly fills out the notary block on the document. The Kentucky Revised Statutes provide very specific language requirements for a self-proven Last Will and Testament.

The heightened execution requirements for Last Will and Testaments in Kentucky pose an issue for those who prepare their estate plan while residing in another state and move to Kentucky prior to their death. If a Last Will and Testament is not self-proven, the document will not be allowed to be admitted to the probate court upon the testator’s death unless the witnesses to the testator’s signature attend a court hearing and testify to the authenticity of the testator’s signature. In the case of a probate administration, the lack of a self-proven Last Will and Testament may mean additional court costs and attorney fees to track down the witnesses and represent the estate at the hearing. It will also require additional time and delay in the estate administration due to the extra step necessary to get the Last Will and Testament admitted to the probate court.

If you move states, more specifically to Kentucky from other states, updating your estate plan should be a priority. Contact Rosenacker Law Office to consult with an attorney well-versed in updating estate plans post-move to Kentucky or Ohio. Planning for difference in the law involving the execution of Last Will and Testament could preserve assets to pass to your loved ones and save your estate from any unnecessary delay.


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