The Dangerous Path of Property through Intestacy: The Need for Estate Planning with Respect to Real Estate

Winding up an estate is a difficult task, one that can take a toll on a group of the decedent’s family and loved ones. This process, however, is exponentially more challenging when a person dies intestate. Real property is particularly difficult to distribute without a definitive statement of intent on the part of the deceased. The various methods of descent in intestacy create tangled estates as families grow in complexity, and so many conflicts might be resolved otherwise through the careful act of creating an estate plan.

In Kentucky, undevised property passes through a system of intestacy that is at least facially regarded as trying to distribute the property in a manner the deceased would have intended. First of all, a surviving spouse takes a ½ share of the estate.[1] KRS 391.010 then sets out the line of descent, where property passes first to the children of the decedent and their descendants, then to the parents if there are no children, then to siblings if there are no parents, then to the surviving spouse, if there are no children, parents or siblings.The line continues from there to an ever-expanding array of kindred. This descent seems straightforward, but in practice, the results can be tricky. Take, for instance, a woman with four children from a prior marriage who purchases a house with a man as tenants in common. They later marry, then she dies intestate. As tenants in common, each spouse is entitled to an equal share of the property, so the husband retains his share. The other share, however, passes through intestate succession. The husband receives then a right to half of the remaining half of the property as a surviving spouse, and the decedent’s children receive the other half. Suddenly, the husband owns a ¾ interest in the house, with the decedent’s children splitting a ¼ interest between them. If one of the children died before the decedent leaving three children, those children then split their parent’s 1/16^th interest, each taking a 1/48^th interest in the property. Is this really the result the decedent would have wanted?

One of the greatest gifts an owner of any kind of property can give her or his loved ones is a well-drafted estate plan. As demonstrated above, intestacy is a complex, messy and ultimately undesirable path that can put an already grieving family through another unpleasant experience. The attorneys of McBrayer can help you draft a thorough and careful estate plan to ensure that your wishes with regard to your beneficiaries are well-settled.

Mary Estes Haggin is a Member of McBrayer law.  Ms. Haggin practices in virtually every aspect of real estate law, including title examination, title insurance, clearing title issues, deeds, settlement statements, preparation of loan documentation, contract negotiation and preparation, lease negotiation and preparation, and any and all other needs related to residential and commercial real estate matters.  She is located in the firm’s Lexington office and can be reached at  mailto:mhaggin@mcbrayerfirm.com or at (859) 231-8780, ext. 1145.

Services may be performed by others.

This article does not constitute legal advice.

[1] KRS 392.020