4.04.25 Decedent's Estates

Does your state use terminology different from that provided in 4:04.1 of the Underwriting Manual?

No.

Is there a statutory time limit for (a) probating a decedent's will, or (b) opening administration of an Intestate's estate? If so, specify for both situations. Provide statutory citations.

Both cases are ten years pursuant to KRS 413.160.

Does the disposition of property under the laws of intestacy depend upon any of the following classifications of property or rights in property:

Community YES, separate NO, tenancy by the entirety NO, dower YES, curtesy YES This is the dower/curtesy. A surviving spouse has a 1/2 estate in fee simple of surplus realty or personality KRS 392.020 statute. Balance distributed pursuant to KRS 391.010 - "Descent of real estate" Surplus means after debts. Kentucky has no community property, but does recognize community property of another state KRS 391.210. Surviving spouse receives 1/2 community property, not subject to testamentary disposition KRS 391.220. The remaining 1/2 is subject to testamentary disposition or succession without surviving spouse electing against will, similar to dower/curtesy issue.

Does your state recognize joint tenancies?

Yes. Joint tenancy with survivorship is not treated as probate asset KRS 395.455/KRS 391.315. Joint Tenancy without survivorship - The property includable in the estate as probatable asset shall be with proportion that one bears to the whole number of joint tenants. KRS 397.030 Transfer of title not necessary under Joint Tenancy with Survivorship. Without Survivorship title transfer by will or descent and distribution. KRS 391.010.

Does your state provide for any special benefits to a surviving spouse or family that allow them to take property contrary to will provisions?

Surviving spouse may renounce will and take statutory share (dower/curtesy)KRS 392.020. KRS 391.030 provides an exemption of $7,500 to the surviving spouse or children if no surviving parent. No renunciation necessary.

Summarize the steps required for a testate administration. Provide statutory citations.

Locate and check original will.

Determine venue (place of residence) KRS 394.140

Obtain information for Petition. KRS 395.015, KRS 394.140.

File Petition with original will and Order of Appointment of Personal Representative.

Docket case for hearing.

Send notice as required. KRS 395.015(2), KRS 395.016

Waiver may be signed.

Court appearance. Personal representative must be present.

Sign Bond and Surety at court hearing by PR.

Obtain copies of qualification from clerk.

Pay fee to record Will at hearing.

Inventory within two months of qualifying, PR shall submit inventory. KRS 395.250 and 125.

Renounce Will within six months KRS 392.080

Tax Return must be filed within nine months to receive discount.

Proof of Claims. One year to file. KRS 396.010 and KRS 396.025. Distribution after six months. KRS 395.1

Settlement. Two years after appointment of fiduciary and annually thereafter file periodical and final settlements, KRS 395.610. An informal settlement may be filed after six months, KRS 395.605

Summarize the steps required for an intestate administration.

Same as above, except for filing and recording Will.

Is there a procedure or documentation customarily accepted by the bar to indicate heirship which is not based on a statute or cases?

Affidavit of Descent KRS 382.135(4) to transfer real property by Will without survivorship or intestate succession. No Affidavit of Heirship.

Are there any short or abbreviated probate procedures provided for by statute?

Dispense with Administration. KRS 395.455. Exemption of $7,500 plus debts exceed probatable assets. Court may order assets to surviving spouse or person designated in both testate and intestate estates. Same procedure as above bulleted item, except estate is final upon Court appearance. Special form of Petition to file.

Are there any other probate or alternative probate procedures available in your state that haven't been described?

No.

Do your state statutes provide for an "inheritance" tax?

Yes. Based on heir's share of estate. Must be filed within 9 months to receive discount. Final settlement will not be accepted by the court without inheritance tax acceptance attached. (District Court Rule of Probate 308) Must be paid within 18 months after death of decedent. KRS 140.160. No estate tax to "Class A" beneficiaries: parents, children, grandchildren, siblings, and 1/2 siblings.

Do your statutes provide for an inheritance tax lien?

Yes. However, State Revenue Cabinet issued a "blanket release" of all liens, (present, past, and future) on 6-5-98 due to changes in state law.

Summarize the steps of the procedure for the sale of real property during the pendency of an intestate administration.

Prepare motion and order for transfer. File with court along with contract of sale and evidence of FMV. Sit for hearing. Notice portions of interest. After court approves transfer , must wait 30 days to sell. KRS 389A.010 et al.

Can a personal representative for a testate administration sell real property of the estate without obtaining a court order?

Yes, provided that the Will directly gives this authority to the PR and the sale is to satisfy debts of the decedent's estate. KRS 389A.010.

When, if ever, must a personal representative of a testate administration obtain a court order to sell real property of the estate?

When authority not given within Will. Also for unborn or unascertainable heir KRS 389A.010 et al.

Do your state statutes provide for the probate of foreign wills (wills of testators not domiciled in your state)?

Yes. KRS394.150. Application for probate should be accompanied by an authenticated copy of the Will and a certified copy of the order of probate. The court shall presume that the Will was duly executed and admitted to probate as a Will in State or County of testator's domicile and shall admit the copy to probate as a Will in this State.