A Description of the Probate Process
- In brief...
- Probate / Estate Administration concerns the transfer of a person's assets after death. Only assets that will not automatically go to someone else after death have to go through Probate Court. For example, assets that are jointly owned will usually pass to the surviving party in the event of the death of one of the owners. Additionally, life insurance policies, annuity contracts, and retirement contracts that have named beneficiaries will pass to those beneficiaries without going through Probate Court.
- Two Types of Estates...
- If a person dies with a Will (Testate), the representative named in the Will must file a petition with the Court to be named the Executor and to have the Will approved/admitted for Probate. If a person dies without a Will (Intestate), and thus without naming a representative, a person close to the deceased, generally a family member, must file a petition with the Court to become the Administrator of the estate.
- Two Types of Representatives...
- A person's assets are placed in the care of either an Executor or an Administrator. The Executor and Administrator are both representatives of the deceased's estate, but different titles are used to indicate whether the representative was named by the deceased in his or her will.
- An Executor and an Administrator have the same duties. As the representative of the estate, both must make an inventory of all of the assets of the estate, pay the legitimate bills of the estate, pay taxes on the estate if required by law, and then distribute the remaining assets to the heirs/beneficiares. Where the Executor does so according to the instructions in the Will, the Administrator must distribute any remaining assets to heirs according to Kentucky State Law.
- Administration of Intestate Estates...
- If there is no Will, the proceeds of the estate will be distributed according to Kentucky State Law. First, the surviving spouse will have the right to receive one-half of the assets; this share is sometimes known as the "dower right". The remaining assets are then to be distributed to the deceased's children; if none, then to the deceased's parents; if none, then to the deceased's siblings; if none, then the surviving spouse receives the remaining half.
- Many people are surprised to learn that the surviving spouse is fourth down the list. This alone is an excellent reason to prepare a will.
- Claims on the Estate...
- Kentucky State Law requires that an estate be left "open" for a period of no less than six months. This period allows creditors a chance to present a claim for debts the deceased may have owed to them prior to his or her death. Generally, the assets of an estate are not distributed until this six month period has passed and the final paper work is filed with the court.