GOEING GOEING & MCQUINN PROBATE ATTORNEYS
Probate is the process of evaluating a decedent’s estate and then determining how assets should be distributed and how debts should be paid. The probate process settles any matters or issues that the estate may have. While there are ways to avoid probate proceedings for certain assets, it is often necessary for a court to help determine the meaning of a will or the true intent of the deceased. If there is no will and no intent can be determined, Kentucky law will decide how assets should be distributed to a decedent’s heirs.
PROBATE STEP BY STEP
Step 1 – File a petition with the court (this is called a form AOC-805 in Kentucky)
By filing this petition, you are asking the court to admit a will (if it exists) to probate. You are also asking the court to appoint an executor to manage or administer the loved one’s estate. If a will exists, this person is typically named in the will. If no will exists, then the form AOC-805 petition asks the court to appoint an individual to be the administrator of the loved one’s estate. Regardless of whether this person is deemed an executor or administrator, the responsibilities are the same – this person is considered the personal representative and will have to manage the distribution of assets and payment of debts.
Step 2 – Prove a will in court
If a loved one’s will was signed by two witnesses and was notarized, containing certain language required by Kentucky law, then you do not need to “prove” that the will is valid. On the other hand, if the will is handwritten, was not notarized, and/or it does not contain specific language required by Kentucky law for self-proved wills, then you will have to prove to the court that the will is valid. This is done by at least one witness attesting to the validity of the will. If the will is handwritten, then someone who knows the loved one’s handwriting, such as a family member or close friend, can attest that the will is in the handwriting of the deceased loved one.
Step 3 – Administer the Estate
The personal representative of the estate (administrator/executor) takes control of the assets that the loved one had at the time of his or her death. The personal representative protects and manages the assets for a period of not less than six (6) months. When there are creditors involved who have a right to collection of a debt owed to them, the personal representative must comply with Kentucky law in paying the creditors what they are owed or disputing that the claim is valid. Determining who creditors are and what priority they have in collecting their debt from one’s estate can be extremely complicated. This is the time when an experienced probate attorney can substantially help you through the probate process.
Step 4 – Settlement of the Estate – Formal and Informal
Once all debts and taxes are paid, and once all remaining assets are distributed, the personal representative then prepares a final settlement. This settlement is then filed with the court, however, the personal representative cannot file the form (which is called a form AOC-846 in Kentucky), until at least six months after he or she was appointed to administer the estate. In cases where settlements take more than two years, then periodic settlements may be required.
Probate allows for the possibility of either formal or informal settlements. A formal settlement requires an exhaustive, detailed record of receipts and a record of what has been distributed to the heirs. A personal representative is compensated for his or her responsibilities, so a formal settlement requires that the personal representative list out the amount he or she (along with his or her attorney if one has been retained) should be compensated.
In some cases, the court may accept an informal settlement. Each heir of the decedent must sign a waiver that is notarized, indicating that each of them has received their share of the decedent’s estate. This waives the requirement of having the personal representative file a formal accounting with the court. With an informal settlement, the personal representative must include proof of the distribution of assets along with either (1) an Affidavit of Exemption where no inheritance taxes are owed; or (2) a letter from the Kentucky Revenue Cabinet confirming that no taxes are owed. Just like with the formal settlement, an informal settlement must also list out what amount the personal representative and attorney (if one has been retained) are to be paid for their responsibilities.
ADDITIONAL FACTORS TO CONSIDER
The probate process can be very complicated, or it can be rather simple, depending on how big the decedent’s family is, how many and what kinds of assets are part of the decedent’s estates, and how much debt the decedent owed at the time of his or her death. It is especially important to potential guardianship matters if there are surviving minor children. If this situation applies to you and your family, consulting with a probate attorney will help you ensure the minor children are adequately protected. Probate can be virtually eliminated by the use of valid Trusts.
CONTACT US TODAY FOR A FREE CONSULTATION TO DISCUSS YOUR PROBATE MATTER
If you have recently lost a loved one and need assistance with probating your loved one’s estate, call the law firm of Goeing Goeing & McQuinn today for a free case evaluation. Our probate attorneys can make the process as streamlined as possible to reduce the stress that inevitably attaches to any loss of a loved one. Allow our firm to take the heavy burden of administering legal matters in such a fragile time. We understand that the last thing you want to do is to be involved in legal proceedings, and in most situations, everything can be situated so you never step foot in a courtroom. Our attorneys will assist you and ensure you completely understand the probate process. To speak with one of our skilled probate attorneys, call us at (859) 904-2045.