Trust, Estates and Probate

Trust/Living Trust
What is the advantage of a Trust?
Property left through a trust or living trust does not go through probate court prior to reaching the beneficiary if the property was owned by the trust at the time of the decedent’s death. A trust can be made during the decedent’s lifetime (called an inter vivos trust) or it can be created according to the terms and conditions stated in the decedent’s will, which becomes effective upon his or her death (called a testamentary trust).

Estate Planning
What is included in an Estate?
The fair market value of the decedent’s, or deceased party’s property and interest at the time of death. This could include cash, real estate, trusts, annuities, business interest and other interests. This excludes property solely owned by a spouse or another and lifetime gifts, depending on their stage of completion.

*The property included in an estate does not necessarily equal the value used to evaluate estate tax.

Why are wills important?
No one wants to contemplate the possibility of his/her death. Should something happen to you, how will your assets be disposed? Without a current will, the court will decide what is to become of your assets according to what they feel, is best. Having a will allows you to control the distribution of your assets in the event of your death and eliminates potential arguments and hardships amongst your beneficiaries.

What are the components of a valid will?
To be valid, a will must be in written, typed or printed form, signed with your signature at the end of the document and witnessed by at least two others present at the time of your signing. If a will does not comply with these requirements, the court has discretion to grant, or not grant, probate, which could potentially invalidate your final wishes. It is important to meet with an attorney who specializes in this area.

What if I die without a will?
Dying without a will, or “intestate”, your estate is distributed to court-determined beneficiaries in accordance with the will of the court. Some typical examples of potential outcomes include:

If you die without a spouse or children, but are survived by your parents, your parents generally receive all of the assets of your estate.
If you die and are survived by a spouse, the whole of your estate will generally pass to your spouse.
If you die and are survived by a spouse and children, the estate will most likely be divided between your spouse and children, as determined by the courts. This could potentially burden your spouse who may have to sell a family home in order to pay out the shares to the children.
If you die without a spouse, children or parents, but are survived by brothers and sisters, then your estate will be divided equally amongst the siblings.
Additional reasons for having an updated will include:

protecting family owned businesses and a lifetime of assets
having a smooth transfer of assets in the event of your death
to secure your children’s future and nominate guardians (for underage children)
for those in a second marriage, a will provides the guidelines by which beneficiaries from prior and current relationships are divided – although a marriage will generally invalidate any will made prior to the date of marriage, a divorce does not automatically cancel a will.
What actions can be taken to transfer ownership of assets outside of probate?
Some process is needed to transfer legal title from the decedent’s own name to his or her Beneficiaries or heirs. Property that does not need to go through probate to transfer legal title includes property that passes automatically to someone else at the death of the decedent. Property that passes directly to others includes the following:

Real property (such as land and buildings) and personal property (such as bank accounts, vehicles, jewelry, and so on) owned as joint tenants passes to the surviving co-owners by operation of law without going through probate.
Benefits payable to named Beneficiaries, such as those from a life insurance policy or annuity bypass probate. Money from IRAs, Keoghs, and 401(k) accounts transfer automatically, outside probate, to the persons named as Beneficiaries. Bank accounts that are set up as payable-on-death accounts (POD for short) (also called an “in trust for” account or a “Totten Trust”) with a named Beneficiary also pass to that Beneficiary without probate.
Probabte Trust Law

What is Probate?
At death, your will goes through a process by which your will be determined to be your final wishes and a person or institution is appointed as administer of your estate, per your wishes. The probate consists of the gathering of assets, payment of debts and taxes of administration and distributing the assets amongst the beneficiaries in the will.

What is a Living Will?
A living will is an advanced statement regarding the preference for life sustaining procedures and treatments in the event one becomes incapacitated or terminally ill.

What is a Power of Attorney?
There are three types:

Nondurable – Takes affect immediately and remains in affect until it is revoked by the Principle or they become mentally incompetent or deceased. This is typically used for a specified purpose or transaction.
Durable – Allows one to continue to act on behalf of the Principle after they are mentally incompetent or physically incapable of making decisions. This power of attorney will remain in effect until the Principle revokes it or is deceased.
Springing – Is to be in effect at a future time in the event of disability or illness of the Principle. The power of attorney remains in effect until the Principle’s death or revocation by a court.

Residential and Commercial Real Estate Law

“Bringing a peace of mind to all your real estate transactions”
Our real estate attorneys, paralegals, title examiners, and staff are involved in every aspect of our real estate law practice. We utilize the latest technology to further our clients needs, protect their interests, and perform quality work in the most cost-efficient and effective manner possible. Kerrick Stivers Coyle, PLC provides a full range of legal services to real estate clients in the Bowling Green, Elizabethtown, Louisville and the Central Kentucky region. Our real estate law services include the following:

Closing of purchase, sale and refinance of residential and commercial real estate which includes:
Conducting in-depth title search and examination.
Ordering payoffs of mortgages and liens, collect taxes and assessments, and seek out and obtain releases of prior liens.
Acting as closing agent pursuant to the instructions of the buyer, seller and lender.
Acting as fiduciary agent to prepare and record documents in accordance with contract, lender instructions and state & federal laws.
Conducting a smooth, prompt and professional closing.
Explaining closing documents and answer questions related to the closing.
Serving as escrow and disbursing agent for all funds and distribute funds at closing.
Preparation and negotiation of contracts and leases
Title examinations
Title insurance
Preparation of loan documents
Subdivision matters
Tax law
Eminent domain
Mortgage foreclosures
Mechanics liens
1031 Exchange
Creditors Rights
KSC works with numerous real estate agents, auctioneers, financial institutions, land developers, construction companies and various buyers and sellers of residential, commercial and agricultural land. This vast experience with our clients ensure that your real estate law needs will be properly met.

Please contact our real estate attorneys, Greg N. Stivers, Frank Smith, Ted G. Hathaway, or Scott Lafuenberg through this website or by calling (270) 782-8160 for the Bowling Green, KY office or through this website or by calling (270) 737-9088 for the Elizabethtown, KY office.

Who does the closing Attorney represent in the closing?
The closing attorney handling the closing is doing so at the request of the lender and is there to protect the lender’s interest. The closing attorney will not provide legal advice to either the buyer or the seller. Each party should consult their respective attorney if either party believes legal advice is needed.

What do I need to bring to closing?
All parties must bring to closing a valid photo identification, i.e. a driver’s license or passport, or the closing will be delayed until such identification is produced.

Do you require the buyer or seller to bring certified funds to closing?
Please bring certified funds to your closing as we may not accept cash or personal checks over $500.00.

What is Title Insurance?
Title Insurance policies typically insure a homebuyer against any title-search errors or mistakes, and against loss due to disputes over property ownership. Title Insurance can additionally offer protection to the lender under similar circumstances. The cost of title insurance is usually a set value per thousand of dollars of the total loan amount.

Who is covered by title insurance?
The lender and the buyer. When you buy property, you are commonly required to buy title insurance. This covers the outstanding balance on the mortgage for the lender, but does not protect you. When acquiring property, it is a good idea to get your own title insurance policy. It will give you peace of mind and maximum protection in case there’s a claim against your home.

How can I purchase an Owner’s Title Insurance Policy?
The one-time premium for an owner’s title insurance policy will appear on the closing statement, if the transaction is a purchase, unless you declined the coverage at closing. The buyer always has the option of purchasing an owner’s title insurance policy either at or after closing, but the premium for the insurance will increase if the policy is not purchased at or within 30 days of closing.