Starting the Probate Process
The first step in Kentucky probate is to locate the decedent’s original will.
If a will is found, the next step is filing a Petition in Court asking to probate the will and to appoint an executor to administer and settle the decedent’s estate.
If no will is found, a Petition is still filed but one asks for an Administrator to be appointed to administer and settle the decedent’s estate.
Executors and the administrators are generally referred to as “personal representatives” or a “fiduciary.”
Probating the Will
Probating a will establishing the validity of a will and publishing it by recording it with the County Clerk. There three basic types of wills: self-proving, non-self-proving, and holographic wills.
A self-proving will is one that has specific language required by statute, two witnesses and all signatures are notarized. A self-proving will “stands on its own” and no witnesses are required to come into court to testify on the validity of the will.
If the will is not self-proving, the will must be proven in court by at least one of the witnesses (at least two) that signed the will.
A holographic will—one that is written entirely in the handwriting of the decedent and has no witnesses—requires two individuals to appear to testify that the will is the decedent’s own handwriting.
Administering the Estate
Once appointed by the court, the personal representative has a duty to take control of the assets of the decedent, manage them, protect them and, eventually distribute them. An Inventory is required to be filed with the Court within 60 days of the appointment. The inventory lists the assets and their values at the time of the decedent’s death.
Debts of the Decedent
Claims are paid in the following order:
- Costs and expenses of administration—these are attorney fees, personal representative fees, other professional fees (CPA’s, appraisers, etc…) and courts costs
- Funeral expenses—all funeral home costs, plot and headstone
- Debts and taxes with preference under federal law and other laws of this state—usually taxes, debts owed to the state or federal governemnt and child support
- All other claims
All creditors that wish to be paid from the estate are required to file a claims against the estate within 180 days (6 months) from the date the personal representative is appointed. Valid debts can be paid after the six months are up. Invalid claims need to be “disallowed.” If a creditor fails to file a claim within the time limits it can be denied and not paid.
Settling the Estate
Once all debts have been paid (or disallowed), taxes have been paid (if any), and after the remaining assets have been distributed to the heirs, the personal representative should prepare and file a final settlement with the Court. The settlement should not be filed before six months from the date the personal representative was appointed.
Informal settlements are allowed by the Court when each heir signs a waiver stating that they have received their share and waive a formal accounting.
A formal settlement requires a formal accounting of the estate—all receipts and disbursements along with canceled checks—including all distributions to heirs and compensation to the personal representative and attorney.
Small Estates or Dispensing with Administration
Kentucky allows “dispensing” with an estate. This procedure allows one to not open a “full estate” when the estate is less than statutory exemption and preferred debt as detailed above. The Court can order the transfer of estate assets without the need for a full administration.