The goal of probate proceedings is to settle the estate of a deceased loved one. As an executor of a will, that means wrapping up the financial matters of the decedent, collecting property, paying debts, and distributing the remaining property according to the terms of the will or, if there is no will, according to the law of intestate succession that applies. If you need help, your probate attorney can explain the steps required in probate.
Getting the probate process started
The first step in the Kentucky probate process is to locate the decedent’s original will. The second step is to file a petition asking the District Court judge to admit the will to probate and to appoint an executor of the will to administer and settle the decedent’s estate. When there is no will, the same petition needs to be filed, requesting that the court appoint an administrator to handle the financial affairs of the deceased. The executor and the administrator are also referred to as personal representatives.
Proving the Will
The will must be proven in court by at least one of the witnesses, unless it is a “self-proved” will. A self-proved will is one that is signed by the decedent along with two witnesses. All signatures on a self-proved will must be witnessed by a notary public and include specific language required by statute. There could also be a holographic will, which is one that is written entirely in the handwriting of the decedent. With that type of will, the only testimony required is proof of the decedent’s handwriting by someone who is familiar with it.
How the executor of a will administers the Estate
Basically, it is the personal representative’s duty of take control of the assets of the decedent in order to manage and protect them. Within 60 days of the appointment of the personal representative, he or she must prepare and file an inventory of the estate’s assets with the District Court. The inventory needs to list the value of the assets at the time of the decedent’s death.
Paying the valid claims of preferred creditors
The law recognizes certain creditor claims as “preferred.” Those include funeral expenses as well as the debts or taxes with a preference under Kentucky or federal law. Anyone, including a surviving spouse or child, has the opportunity to provide proof of payment of a preferred claim and petition the District Court judge to transfer the decedent’s personal estate to them as a “preferred creditor” up to the amount of the paid claim.
Settling the decedent’s estate
Once the debts have been paid, along with any taxes owed by the estate, and after the remaining assets have been distributed to the heirs, the personal representative is required to prepared and file a final settlement with the District Court. The settlement cannot be filed until at least six months from the date the personal representative was appointed. If settling the estate lasts longer than two years, a periodic settlement may be required. Settlement of the estate can be either formal or informal.
Formal settlement of an estate
A formal settlement requires a detailed record of all receipts and disbursements along with canceled checks. A formal settlement must be able to account for all distributions to heirs of their respective bequests. Finally, the formal settlement must reflect the amount of compensation the personal representative and his or her attorney are to receive, as well as the basis for that compensation.
Informal settlement of an estate
Informal settlements may be an option when each heir has a notarized waiver stating that they have received their share of the estate and waive the requirements of a formal accounting and settlement. The District Court must accept the informal settlements, which must also include proof of distribution of any specific bequests. The settlement must also reflect the amount of attorney fees paid by the estate, if any.
There is also the option of, what is known as “dispensing” with administration of the estate. In Kentucky, the law allows certain individuals to request that District Court direct the transfer of estate assets in small estates without the need for further court proceedings. This is an even simpler method of settling the estate.
Avoiding probate altogether
It is actually quite easy to avoid the probate process if that is your goal. There are several basic ways to make sure your property passes to your chosen heirs without going through drawn out probate proceedings. Some of these methods include Revocable Living Trusts, Pay-on-Death Accounts and Registrations, Joint Ownership of Property and Gifts. It is a good idea to consult with a probate attorney to explore which options are best for you.
Attend a FREE seminar! If you have questions regarding the steps in the role of an executor, or any other probate matters, contact Gersh Law Offices, P.S.C. for a consultation either online or by calling us at (502) 423-7023.