Who needs to plan?
Virtually everyone over the age of 18 can benefit from planning.
What happens if I don't have a plan?
The State has a default plan in place. This process generally takes at least 6 months. A petition is filed in probate court, an administrator is appointed to handle the estate and may be paid from estate funds, debts and expenses are paid, and the remainder is distributed to closest known relatives. If none are living or they can't be found, it is possible for assets to escheat to the State.
There is often conflict among family members regarding who should be the administrator, who should get what items of property, and what the deceased person would have wanted. In many cases, real estate must be sold. A court-appointed guardian must be appointed to handle any assets passing to minors under the age or 18.
What is probate?
Probate is basically a lawsuit filed against your estate for the primary benefit of creditors. When someone dies with a will, a petition is filed to admit the person's will into probate and appoint an executor for the estate. When someone dies without a will (or trust), a petition is filed to appoint an administrator for the estate. The executor or administrator has the duty to identify all the person's property, pay their debts, funeral expenses, and other costs of administration out of the estate property, and distribute the remaining estate property to the people named in the will (or to the closest relatives if there is no will).
What is a Trust?
A Trust is a private contract between the Grantor(s) (person setting up the Trust) and one or more Trustees (the person(s) in charge of managing the Trust), for the benefit of the Beneficiaries. There are many different kinds of Trusts, used for different purposes. A Revocable Living Trust is one of the most-used. Among other things, it can serve as a method of estate planning that allows most of a person's assets to pass outside of probate, so court proceedings and expenses are largely avoided.
The Grantor is generally the Trustee to start out, and they have full discretion to use the assets in the Trust, give them away, or even to revoke the Trust. When the Grantor dies, the Trust becomes irrevocable, and a successor Trustee automatically takes over the duties of managing the Trust. The successor Trustee manages and distributes the Trust assets according to the instructions of the Trust document created by the Grantor.
A Revocable Living Trust is more expensive to set up than a Will, but it provides much more control over how and when assets are distributed. It can also provide protection from certain creditors, from division in divorce, and from bad decisions of beneficiaries. To learn more about how a trust works and whether it fits your planning goals, please call to set up an appointment with Than Cutler.
What is required to file a petition for adoption?
In Kentucky, every prospective adoptive parent must be over 18 and have resided in the state for at least 12 months. If the adoptive parents are not close relatives of the child, they must get approval from the Secretary of the Cabinet for Health and Family Services before filing an adoption petition in court. If the adoptive parents are close relatives of the child (such as stepparent or grandparent), pre-approval of the Cabinet is not necessary. However, adoptive parents should be prepared to have a background check and a home study performed by the Cabinet or a licensed child-placing agency.
How long does the whole process take?
Unless the child has been placed by an approved agency, by the Cabinet, or with the approval of the Cabinet, the child needs to reside in the home of the adoptive parents at least 90 days before a petition can be filed. Also, the Cabinet generally has 90 days in which to file its report approving or disapproving of the adoption. If the biological parents are agreeable to the adoption or their parental rights have been terminated previously, a final hearing should generally be held within 1-3 months of filing the petition. If a biological parent is not agreeable, the process will likely take several more months.
How much does it cost?
As with most cases, it depends on how much time will be involved. There are court costs of roughly $200. If pre-approval of the Cabinet is required, there is an additional $200 fee. If the adoptive parents' gross income is over 250% of federal poverty guidelines, they will probably have to pay for the cost of a home study by a private agency. Their attorney's fees will probably be between $2,000 and $5,000. In some cases, an attorney known as a Guardian ad Litem will be appointed for the child.
The adoptive parents will usually be required to pay their fees as well, which will depend on the amount of time involved. Any expenses paid on behalf of a biological parent must be carefully documented, since they must be submitted for Court approval. It is a crime for adoptive parents to pay attorneys fees for a biological parent without prior court approval.
What if the child is from another state?
If the custodial parent(s) of the child or the adoptive parents live outside of Kentucky, the adoptive parents will have to comply with the Interstate Compact on the Placement of Children, which will require additional time and expenses. This could require hiring an attorney from each state involved.
What if a parent consents to adoption, but changes their mind later?
In cases requiring Cabinet approval, written informed consent to adoption becomes irrevocable 72 hours after the Cabinet approves placement of the child or 72 hours after the parent signs the consent form, whichever is later. If Cabinet approval is not required, consent becomes irrevocable 72 hours after a parent signs the consent form.