The mistake many people make after having their wills and other testamentary documents prepared, is to file them away and not look at them again. In an estate I am handling, the decedent made her will in 1982. She never changed it. When she passed, the executor named in the will had predeceased her and no alternate was named. The decedent’s daughter then had to be appointed as an Administrator rather than an Executor to handle the estate.
Wills typically give Executors the power to sell property, including real estate, without court approval. Without that appointment in a will, any sale of real estate from the decedent estate, has to be approved by Probate Court. While this procedure is not complicated, it does require extra time for the attorney representing the Administrator which increases the costs to the estate.
The lapsed executor is only the most visible problem with a document that has sat untouched for forty years. Over that span, beneficiaries die, marry, divorce, and fall out of touch. Specific bequests fail because the property described in the will was sold or traded years before the testator’s death. Guardians named for minor children are, by the time the will is read, older than the children they were appointed to protect. A will drafted in 1982 may also not be self-proved, which means the court may require a subscribing witness to prove it — and the witnesses to a forty-year-old signing are frequently dead, unfindable, or unable to recall the event.
Kentucky law fills a few of these gaps, but only a few. A divorce revokes any disposition to the former spouse and any nomination of that spouse as executor, and the will is then read as though the former spouse had not survived the testator. That is a useful default, but it names no one in the ex-spouse’s place. The statute prevents the wrong result; it does not produce the right one.
It should also be remembered that the will governs only the property that passes through the estate. Life insurance, retirement accounts, and accounts payable on death go to whoever is named on the beneficiary form, regardless of what the will says. Property held jointly with right of survivorship passes to the survivor by operation of law. I have seen carefully drafted wills defeated entirely by a beneficiary designation signed decades earlier and never revisited.
The same neglect affects the documents that operate during life. A power of attorney terminates at death and is of no use to the estate, but a stale one is often the more immediate problem — banks and title companies grow reluctant to honor an instrument signed twenty years ago, and the family discovers this at exactly the moment the authority is needed. Health care directives should be reviewed on the same schedule, and the person named should actually know they have been named and where the original document is kept.
It is good practice to review your testamentary documents annually and if changes need to be made, they can be made easily. The review itself takes very little time. Read the will and ask four questions: Is everyone I named still living, still competent, and still someone I would choose? Do I still own what I described? Have my family circumstances changed? Do the people named know what they have been asked to do? If the answers are satisfactory, put the will back and repeat next year. If they are not, a modest amendment now will cost the estate far less than the alternative.