kentucky state law?

Question

what are the laws concerning heirs to property in ky? ancestor left no will. we have been keeping up the taxes also. is their a lineal descent issue and who are exactly considered the heirs? does the person paying the taxes have ALL the right to the land to do with as they please? Thank..

Answer 1

Introduction

The Kentucky estate administration process is generally referred to by lawyers and laypersons alike as "probate." The most important objective of probate is to see that the property of a deceased person (the "decedent") is transferred to his or her rightful heirs. However, probate also involves the payment of the collection of the decedent's property and the payment of the decedent's debts and taxes.

The rules governing the probate process in Kentucky are found in Chapters 394-396 of the Kentucky Revised Statutes. Unlike other states where probate laws can be complex and onerous, Kentucky's probate laws and procedures are fairly simple and straightforward.


The Petition

Essentially, there are three basic steps in the Kentucky probate process. First, a petition must be filed by an appropriate person in the decedent's county of residence to begin the probate process. Pursuant to KRS Chapter 24, district courts have jurisdiction over probate matters in Kentucky, and the petition is, therefore, filed with the district court clerk.

Per KRS 395.015, the petition must state:

a. The names of the surviving spouse, all known heirs at law, and their addresses;

b. Date of death;

c. Statement in general terms as to what the estate consists of and probable values of real and personal property; and

d. Statement of indebtedness owed to the petitioner (if any).

The petition is embodied in AOC 805 which is a form available from the district court clerk. It must be submitted in duplicate and in verified form (under oath) pursuant to KRS 395.015. The petition must also be submitted with a filing fee which is typically around $60.00.

If the decedent died with a will, the original will must be submitted with the petition. A will is valid in Kentucky only if it is in writing, in English and signed at the end by the decedent. If the will is not entirely in the handwriting of the decedent, it must be signed or acknowledged by the decedent in the presence of at least two witnesses, who also must sign in the presence of the decedent and each other. The witnesses must testify at the hearing on the petition in order to prove the will unless the will is "self proving." KRS 394.225 provides that any will may be proven without the testimony of witnesses if it has been executed and attested in the form provided by KRS 394.225(1). Essentially, if a will is witnessed by two witnesses and the signatures of the decedent and the two witnesses are notarized, the will shall be deemed to be self proving.

If the decedent died without a will, he is said to have died "intestate." In cases of intestacy, KRS 395.015 requires that notice of probate be given to all of the decedent's heirs at law. In such cases, a hearing on the appointment of the personal representative will be held by the Court pursuant to KRS 395.016

Once the petition has been filed, the district court clerk will set the matter for a hearing. Generally, a district court judge will set aside an hour during the week for probate hearings. This is known as probate court. For example, in McCracken County, probate court is currently held every Monday morning beginning at 8:30 a.m. Because all required filings are made and the filing fees are paid prior to the hearing, the only thing that usually occurs at the hearing is the administration of the oath by the district judge to the personal representative (the executor or administrator). The personal representative is the person who will be handling the administration of the estate and is usually the same person who submitted the petition.

The Two Month Inventory

The next step in the Kentucky probate process is the filing of an inventory of the estate. Per KRS 395.250, the personal representative has a duty to file the inventory within two (2) months from his or her appointment. The two month inventory must be submitted in duplicate, and its filing makes the assets of the estate and their values a public record.

The Final Settlement

The last step in the probate process has to do with closing the estate. The procedure by which an estate is closed begins when the personal representative files a "final settlement." A final settlement is the personal representative's detailed accounting to the Court of all receipts and disbursements relating to the estate and must be supported by vouchers, receipts, and similar supporting documentation. Final settlements must balance to the penny.

After the final settlement is filed, the district judge reviews the accounting and files a written report. The clerk shall then set a date for the hearing on the judge's report. The judge may hear evidence, question the personal representative under oath, and summon witnesses, if necessary to the preparation of the written report.

The clerk then publishes notice of the filing of the final settlement pursuant to the provisions of KRS Chapter 424. The notice will contain the date of the hearing, and if no exceptions are filed to the final settlement prior to the hearing, the Judge's report will be approved and recorded. If exceptions are filed, a hearing may be held and the Judge may reject, alter, or confirm the report as he or she determines.

Because of the detailed accounting that must be provided, the final accounting is usually the most daunting aspect of the probate process. However, Kentucky law provides a more simple procedure for closing an estate under certain circumstances. This more simple procedure is found at KRS 395.605, which provides that a personal representative may file what is called an "informal settlement." For example, if the personal representative is the sole beneficiary of the estate, the Court may dispense with the requirements of the filing of the final settlement and accept an informal settlement. Also, if there is more than one beneficiary, and all of the beneficiaries execute verified waivers of a final settlement, the Court is required to accept an informal settlement filed by a personal representative. Further, it is not necessary to obtain waivers from beneficiaries who have received and given receipts for their legacies. It is sufficient to attach to the informal final settlement the canceled checks or signed receipts. In addition, there is no requirement of giving notice to any person when an informal settlement is filed.

KRS 395.605(1) provides that an informal settlement shall be made under oath by the personal representative and shall state that:

a. The estate was solvent;

b. All legal claims and debts have been paid for (or, if not paid, the manner in which said claims and debts have been provided for is described);

c. All inheritance, estate, or death taxes have been paid, with a duplicate or photocopy of such tax release attached, if available;

d. All court costs have been paid;

e. Beneficiaries have received their share of the estate; and

f. The name of the attorney(s), if any, representing the personal representative, and the amount of the attorney's fee.

After the personal representative files an informal settlement, the judge may immediately enter an order closing the estate.

Duration of Probate

Although there is no statute that requires an estate to stay open for any particular length of time, estates will generally stay open a minimum of 6 months. This is because KRS Chapter 396 states that creditors of estates have 6 months in which to file claims, and any claims not filed within the 6 month period are not enforceable. Lawyers for estates usually recommend that a personal representative wait to make any distributions from an estate until the expiration of the 6 month period so that all claims of creditors can be ascertained. Since any claims made after 6 months are barred, the personal representative may thereafter make distributions from the estate without having to worry about later claims against the property of the estate. On the other hand, if a personal representative were to make distributions from an estate prior to the expiration of the 6 months and the property of the estate was insufficient to satisfy the claims of creditors, the personal representative could become personally liable for the claims.