Kentucky Probate

Probate is a legal process that happens when you die.  A court oversees the distribution and payment of all your property, assets, and debts that you own.  All these things together are knows as your “estate.” The court appoints a person to identify  and collect your assets, pay your debts and distribute your remaining assets.  If you have a will, they follow the things you say in your will.  If you don’t have a will, they follow the law in Kentucky that says how your property is distributed. 

When a person dies, their property can be classified as: 

• probate property or
• non-probate property

Probate property is property owned only by the person who died.  The property must be in their name alone and does not have a named beneficiary.   This includes real property, cars bank accounts and other financial accounts, life insurance and retirement accounts, and annuities where there is no named beneficiary. Probate property must go through probate court.

Non-probate property is property that passes directly to a beneficiary when the person dies. This includes:

• Real property where the title is held jointly, with right of survivorship. (If you have real property, look at your deed.) This means there is  more than one owner and when someone dies, the other person or people on the title get it. 
• Assets held in a living trust
• Bank and other financial accounts with pay-on-death (POD) designations. (Check with your bank.)
• Life insurance policies, transfer-on-death securities,  retirement accounts and annuities with named beneficiaries.

If you have a valid will, your estate is taken care of by the person you named in your will.  This person is your “executor.”  If you don’t have a will, your estate is taken care of by an administrator.  The administrator is picked following state law. 

The court has to okay the person whether it is an executor or administrator.  They are then called the personal representative of your estate.

The administrator must be over the age of 18.   They must be mentally able to do what is needed to handle matters for the estate. If the administrator is related to the person who died, they don’t have to live in Kentucky.  If they are not related, they must live in Kentucky.

A court form called a “Petition for Probate of Will; And/Or Appointment of Executor/Administrator” must be filed to open a probate case.    It is usually filed by the person who was named as executor in the will or the person who wants to be the administrator. The petition is filed in district court in the county where the person who died lived. If there is a will, the will is attached to the petition. The petition will also ask the Court to officially appoint the executor or administrator as the personal representative.

The personal representative (executor or administrator) is responsible for managing the probate process.

• If there is a will, the court looks at the will to make sure it is valid.
• The personal representative  makes a list  of assets owned by the person who died. (This is called the inventory.) Then they put a value on those assets.   Assets include real estate, bank accounts, vehicles and personal items.
• This inventory must be filed within 2 months after the probate case is opened.
• The personal representative also finds and lists debts. They use the assets to pay the deceased's final bills, debts, and any taxes owed. Sometimes property has to be sold to pay off these debts.
• After all debts and taxes are paid, the assets left over are distributed to the beneficiaries or heirs.  They are distributed according to the will or to the laws in Kentucky that apply when there is no will.
• The personal representative prepares and files the final settlement with the Court. The final settlement should show all the details about assets and debts and who got what.

The difference between dying with a will (testate) and dying without a will (intestate) is mostly about how a person's assets are distributed after death. 

Dying With a Will (Testate)

• Asset Distribution: A will says how a person wants their assets and property given out to their beneficiaries. This means the person who died has a say in who gets what.
• Executor: The person who died gets to say who they want to be  appointed the executor. This person or institution is responsible for making sure the terms of the will are carried out and the estate is managed properly.
• Legal Process: The will must be “validated” through the probate process.  This is a legal process that confirms the will is real and valid and  lets the executor go aheadand do what is required by Kentucky law.
• Control: The person who died can put specific instructions in the will. Things like who they would like to be guardian of their minor children,  funeral arrangements or what property certain people get. 

Dying Without a Will (Intestate)

• Asset Distribution: If a person dies without a will, the Kentucky laws say how their deceased  probate property will be distributed.    For example:

  - If the person who died had a  spouse and children who are still alive,  the surviving          spouse gets half of the probate property, and the other half gets split up in equal shares to the children of the probate property passes in equal shares to the surviving children. 

  -  If the person who died was single has children who are still alive, the entire estate goes to the children. 

  -  In either case, if a person’s child died before them but has living children, those  grandchildren get equal shares of the part of the estate that would have been their parent’s part. 

  -  If the person who died had no living spouse or descendants (i.e., children, grandchildren), the entire estate goes to their parents. 

  -  If both parents are dead, the person who died ‘s entire estate goes to their brothers and sisters and the children of any brothers and sisters who died.

  -   If there are no living brothers and sisters or children of brothers and sisters, the entire estate goes to the person who died’s grandparents and their descendants (most likely aunts, uncles, and cousins).

• Administrator:  When there is no will, usually a relative of the person who died will open the probate case and asks to be appointed.  Kentucky law gives certain relatives preference to be appointed. The court will appoint the administrator and it could be  someone the person who died would not have picked.
• Complicated Legal Process: The process can be longer and more complicated. It can often involve more court hearings to resolve arguments between heirs.
• Potential for Conflict: Without clear instructions in the will, family arguments can start over  who get what.
• Limited Control: The person who died has no control over who gets their assets or the terms of distribution.

Yes. There is a process the court can use to transfer estate assets without going through the full probate process. This is known as a “dispensing with administration”.

This process can be used if you are transferring personal property that is not worth more than  $30,000 and: 

• you are the surviving spouse
• you are a child of the person who died and there is no surviving spouse, or
• you are a creditor, and/or owed money from the estate.