Death is a natural but difficult part of life. When a loved one dies, family and close friends must deal with the emotional aspects of the loss, but there are also practical matters that have to be handled. Residents of the Bluegrass State who are involved in settling the affairs of someone who has passed away should understand the basics of estate administration and probate in Kentucky.
This is the final blog in a series of four regarding estate administration and probate. The opening blog of the series discusses the topics in general, while the latter three focus on the specifics of estate administration in the tristate area of West Virginia, Kentucky, and Ohio. If you need legal counsel regarding estate administration and probate in the tristate area, the Kentucky probate lawyers at Jenkins Fenstermaker, PLLC would be honored to assist you.
What Should You Know about Estate Administration and Probate in Kentucky?
Probate in Kentucky is the formal system for estate administration, the process of wrapping up a person’s financial affairs after his or her death. Settling an estate involves identifying assets and debts and then distributing the assets and paying the debts as designated in the will or estate documents or, when there is no will, as required by law.
Probate is the court process that is often required when settling an estate. The Kentucky probate statutes that govern estate administration and the related legal procedures and documentation are found in Title 34 of the Kentucky Revised Statutes (KRS).
Estate Administration and Kentucky Probate Statutes
Estate Administration and Probate in Kentucky: Where to Begin
Estate administration is more manageable when it is broken down into a step-by-step process. The Kentucky probate statutes govern and guide those steps. The first step is to determine if your loved one had a will and locate that document and any other directives that formally express the individual’s final wishes.
If there is a will and that document designates an executor, the person seeking to administer the estate files a petition to request that the will be admitted to probate and the filer be recognized by the court as the executor. When no will exists or when the executor named in the will cannot or does not wish to serve in that capacity, the petition may ask the court to appoint an administrator to probate the estate. This petition, whether a will exists or not, shall be filed in the Kentucky District Court where the deceased lived at the time of death, according to KRS § 394.140.
Proving the Will
In Kentucky, a will is deemed valid when it is (1) signed by the deceased and two witnesses, (2) in the presence of a notary public, and (3) contains specific language required by KRS § 394.225. A will that does not meet this description must be proven in court by the appearance of at least one witness.
A will that is handwritten, also called a holographic will, is acceptable under Kentucky probate statutes. A holographic will must be entirely written in the decedent’s handwriting, a fact that must be verified by testimony to the court by someone familiar with the individual’s handwriting.
The coronavirus pandemic in 2020 created significant hurdles for individuals wishing to draft a will or other directive, for personal representatives seeking to administer an estate, and for the courts tasked with the legal aspects of estate administration. On March 30, 2020, Governor Andy Beshear signed into law Senate Bill 150. Among other provisions in response to the pandemic, Senate Bill 150 allowed virtual witnessing and notarization of legal documents during the state of emergency.
Responsibilities of the Personal Representative
Whether an executor is designated in a will or an administrator is assigned by the court, the person responsible for the estate, which includes all property, assets, and debts of the deceased, is known in Kentucky as the personal representative. This individual (or entity, such as a bank or trust company) has a fiduciary responsibility to identify and protect the assets held in the estate, pay any debts owed, and distribute the assets of the estate according to the will or pursuant to Kentucky intestate succession laws, KRS chapter 391, when no will exists.
The responsibilities and potential liabilities of a personal representative are significant, and mistakes in the administration of an estate can have serious personal impacts upon the executor or administrator. Qualified Kentucky probate lawyers can help personal representatives manage these responsibilities and efficiently administer an estate as required by the Kentucky probate statutes.
Settling an Estate in Kentucky under the Law
When the assets and debts of an estate have been identified, paid, and distributed, the personal representative, or an attorney acting on the representative’s behalf, files a final settlement with the court. A formal settlement of the estate includes detailed records of all assets, debts, transactions, and disbursements of the estate. Informal settlement is possible if all heirs sign notarized waivers confirming receipt of their share of the estate and waiving a formal accounting.
Do You Have to Probate a Will in Kentucky?
Some assets are not subject to probate in Kentucky. Property and accounts that are co-owned (personal property like a home deeded or vehicle titled in both spouses’ names, or joint bank accounts, for example) may pass directly to the surviving owner upon the death of one of the joint owners.
Assets that include a beneficiary designation also pass directly to that person or persons upon the owner’s death. These might include life insurance policy proceeds, retirement accounts, and investment accounts, among others, and they are often called non-probate assets. However, unless all assets in the estate are co-owned or have a beneficiary designation, probate is still necessary for assessment, payment, and distribution of the remaining assets and debts.
It is important to note that the circumstances above require advance planning. Aside from these kinds of estate planning strategies, the option to administer an estate without going through the probate process is limited. A request to dispense with court administration can be filed with the appropriate district court by a surviving spouse or child of the decedent if the estate’s value is less than $15,000.
Entities or individuals that are designated as preferred creditors under Kentucky probate statutes can also request that the assets of the estate pass directly to them without probate in payment of a debt. Preferred claims include estate administration expenses, funeral expenses, and debts, taxes, and other claims as outlined and ordered under KRS § 396.095.
How Long Does Probate Take in Kentucky?
Probate in Kentucky can take between six months and two years. The personal representative of an estate may not file a final settlement until at least six months after being appointed. If the administration of the estate takes longer than two years, the court may require a periodic settlement.
Probate in Kentucky: When You Need Kentucky Probate Lawyers
There are many considerations related to estate administration and probate in Kentucky. When choosing among Kentucky probate lawyers for estate issues, turn to attorney Anna M. Price and the legal team at Jenkins Fenstermaker, PLLC. Anna can help you navigate the general processes as well as new developments that result from circumstances and emergencies like the COVID-19 pandemic. Schedule a consultation today by calling (304) 523-2100 or completing the firm’s online contact form.