What You Need to Know About the Probate Process in Kentucky
In Kentucky, it’s often necessary to use the probate process to settle the estate of a deceased loved one (this person is called the decedent). It is through probate that ensure the decedent’s estate reaches the rightful heirs and that any debts or taxes owed by the decedent are paid. In other words, probate ensures no fraud occurs after your loved one passes.
When Is Probate Required?
Every estate and probate case is unique. However, there are a few situations where probate is necessary according to KRS Chapter 395.
Only some types of assets require probate, whereas others transfer without any court involvement. Those that fall into the second category include assets with joint tenancy and with tenancy by entirety or community property with right of survivorship. In addition, all bank, brokerage, and retirement accounts and life insurance policies that are payable on death, transfer on death, or have beneficiary designations don’t use probate.
There is also no need for settlement with court supervision when the estate is considered a small estate. This is the case when real estate, personal property, and bank accounts (excluding the types named above) are valued at less than $15,000.
Finally, there is no probate in the case a decedent has set up a living trust. The exception, of course, is when the decedent had assets valued at more than $15,000 that do not form part of this trust.
Starting Probate Process
To initiate probate, it is necessary to find the decedent’s original will and file it along with a petition with the district court. In the case the decedent left no will, you need to ask the court to appoint an administrator — normally, the court will choose the decedent’s spouse or adult child. In either case, the petition should include the names of the decedent’s spouse and all known heirs (along with their addresses), the date of death, and a summary of the estate along with likely values and a statement of how much is owed to the petitioner.
At this time, you should also begin to gather information about any known debts, estate beneficiaries, and other issues that could impact the estate. Doing this early will make the process easier.
Proving the Will or Intestacy
The next step is to present and prove the will in probate court. Proving the will may require one of the witnesses who signed it to be present. This is not necessary if the will is self-proving: when the signing was witnessed by a notary public and the will contains all the required language. In addition, if the will is holographic (meaning it is entirely in the handwriting of the decedent), proving only requires testimony from someone who is familiar with the decedent’s handwriting.
In the case the decedent had no will, you have a case of intestacy. This means the appointed administrator must give notice of probate to all the decedent’s heirs at law.
Inventory of the Estate
The administrator has 60 days after the hearing at the district court to file an inventory of estate. You must do this to the best of your abilities, bearing in mind that you may not be able to discover some assets in this timeframe. You can amend the inventory later if you do find more information.
Assets and Debts
After you have identified the decedent’s assets, it is necessary to protect the estate until it is possible to transfer the property to its heirs. Before you can distribute any property, you must pay any valid debts. It is possible that the decedent’s debts exceed the value of the assets. In this case, you must determine a hierarchy of claims.
The court will arrange for a local newspaper to publish a legal notice of estate to inform the decedent’s creditors that they need to present claims. Creditors then have six months to do so. Some types of creditors are considered preferred — these consist of those owed debts and taxes with preference under Kentucky or federal law as well as those owed funeral expenses.
It is possible that you will receive a claim that you decide is invalid. You will need to formally disallow the claim, which gives the creditor the right to attempt to prove the validity of the claim through a lawsuit in circuit court. The creditor only has a set amount of time to initiate a lawsuit.
The Final Settlement
Closing the estate means filing a final settlement. This is only possible at least six months after the courts have appointed an administrator. If the final settlement takes more than two years, you may need to have a periodic settlement. However long the settlement takes, it may be formal or informal.
In the case of a formal settlement, you will present the court with a record of all the receipts and disbursements for the estate along with any canceled checks. Anyone who has an objection to the final settlement will have the chance to voice their objections and the court will hold a hearing for resolution.
You’ll be able to use an informal settlement if all the heirs are willing to sign a notarized document that states they have received their correct share of the estate and are satisfied with the administration of the estate. By signing, heirs waive their rights to a formal settlement and formal accounting. Along with the waivers, you will need to submit to the district court proof of the distribution of any specific bequests and show how much of the estate went to attorney fees.
One final option is to dispense with the administration of the estate. To do this, you will need to request that the district court transfer assets directly without any court procedures. This is the simplest way to settle an estate.
Probate is unfortunately complicated. You need to be certain you are following the correct procedure, using the right forms, and paying the appropriate claims. It is often better to eliminate probate for your heirs, which is possible by setting up your estate the right way. In either case, make sure you receive guidance from an attorney who specializes in Kentucky probate law.
Kentucky Probate Process
The probate court will process the situation to ensure there is no fraud. If someone passes intestate, the succession laws of Kentucky will start.
· Formal Settlement: This is expensive and considered the highest level of observation.
· Informal Settlement: A certain level of oversight is maintained with informal probate.
· Small Estate: Estates that are under $15,000 in personal property require no probate if a small estate affidavit is filed. Also, this does not include any estate that has real property.
Contact The Fleck Firm Today!
If you need a probate attorney to help you with the probate process, do not hesitate to contact us at The Fleck Firm at (270) 446-7000.