Lexington Probate Attorney
Estate law is full of clunky terms that are unfamiliar to most people.
While you’ve likely heard of wills and beneficiaries, few people can correctly define testator, decedent, executor, or probate. Yet, all of those words will probably come into play during your lifetime at one point or another, and all of them are related to the process of what happens to the ownership of property when someone dies. From the Latin for “something proved,” probate does refer to the judicial determination of whether a will is valid. However, it also encompasses the method by which an estate is administered and processed through the legal system – meaning that probate can occur even if there is no Will.
The complexities of probate law require the guidance of a skilled Kentucky probate attorney. Perhaps you are uncertain of your rights and responsibilities, or you simply may not know where to begin. The Lexington probate lawyers at Bunch & Brock are accomplished legal professionals with more than 35 years of legal experience. Offering comprehensive counsel along with friendly, personal service, we have guided many people through the probate process efficiently and effectively. Put our experience to work for you.
In legal terms, the person who makes a will is called the “testator”; anyone who receives property from the testator is called a “beneficiary”; and the person appointed to make sure the property is disposed of according to the testator’s wishes is called the “executor.” The “decedent” is the person who has died — who also may have been the testator at one time if a will was drafted. If there is a will, the probate court examines it to determine if it was legally created (in writing, signed and dated by the testator, signed by witnesses, etc.), if it lists all the testator’s assets, if the assets are properly valued, and if the assets can be passed on the way the testator wanted. For example, a testator cannot disinherit his or her spouse unless there is a prenuptial agreement stipulating otherwise.
The decedent’s taxable estate includes all the assets in which he or she has an interest at the time of death, but only those assets that are held individually have to go through probate. Assets that are jointly owned with a right of survivorship pass to the second owner when the first owner dies, so they are not usually subject to probate. Insurance policy proceeds, trusts and accounts that allow for beneficiaries to be named are also typically outside the process. If a named beneficiary conflicts with information contained in a will, the named beneficiary will supersede what the will states.
Cash, personal property, real estate, assets held as tenants in common, and named beneficiary assets that do not name anyone are generally subject to probate. The assets that make up an estate have to be distributed in a specific order.
When all of the creditors are satisfied, whatever is left over is distributed to the beneficiaries named in the will.
If the decedent didn’t have a will or it is determined that only part of the estate is covered by a valid will, probate applies Kentucky law to establish who gets what and legally transfers title to those people. Probate can be quite helpful even where a decedent did not leave behind any property to transfer, if he or she had creditor problems or was the subject of a potential lawsuit, because it allows for all of the decedent’s debts to be finally settled. That can be very beneficial to a decedent’s survivors.
Probate courts are state courts so the processes they follow vary from one state to another. In Kentucky, there is a simplified probate process for small estates that makes it easier for survivors to transfer the decedent’s property. The process is available where the will leaves no personal property, there is a surviving spouse and the value of property subject to probate is $15,000 or less, or if there is no surviving spouse and someone else has paid at least $15,000 in preferred claims. To determine if an estate qualifies for this shortcut or whether it must be subject to regular probate, it’s in your best interest to consult with a Kentucky estate planning attorney to review the options.
Some people try to avoid probate because it can be time-consuming and expensive. There are pros and cons to trying to limit the amount of a probate estate by maximizing joint tenancies, lifetime gifts, payable-on-death accounts and living trusts. The average time to complete probate is approximately six to eight months, and the delay in asset transfer can be a hardship for the decedent’s beneficiaries. Probate cases can also take years if the estate is very large, the estate continues to earn large amounts of income after the decedent has died, or if someone challenges the will. Costs in probate proceedings usually equal between two and five percent of the value of the assets that go through the process.
Dealing with a loved one’s estate can be a difficult time for the family. The experienced Kentucky probate lawyers at Bunch & Brock can help. We understand that each probate estate is unique, and we have worked hard to protect the best interests of hundreds of clients faced with the situation you are in now. We are committed to providing each of our clients with a high level of personal service, and we will walk you through each of the steps that must be taken. To schedule an initial consultation, please call 859-254-5522 or fill out this online form.