Is Probate Needed if There is No Will?
December 22nd, 2021 by Bunch & Brock
Depending on the circumstances, probate may be needed if there is no will. A Kentucky probate attorney can help you determine if probate is needed in your individual situation.
Many people believe that if you have a will in Kentucky, then there is no need for probate when you die, but this is not true. While many estates must go through probate if they have no will, not all of them will have to do so. And, depending on your situation, your estate may be subject to probate, even if you have a will.
Probate is a court-supervised legal process to settle an estate after someone’s death. A personal representative, called an executor, who is named in the will or appointed by the court if there is no will, is given the legal authority to gather and value assets, pay debts and taxes, and transfer assets to the people you wish to inherit them. Probate court supervises the distribution of assets to your creditors, heirs, and/or beneficiaries. Probate also refers to the judicial determination of whether a will is valid.
Just having a will is not the determining factor of whether an estate must be administered through the probate courts. The amount of assets you have and how the assets are titled are what determine whether probate is required.
The complexities of probate law require the guidance of a skilled Kentucky probate attorney. If you are uncertain of your rights and responsibilities, or you simply may not know where to begin, the Lexington probate lawyers at Bunch & Brock can help. We 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.
Contact us today by calling 859-254-5522.
Is Probate Necessary?
Probate is not always necessary, but it may be desirable to prevent problems and fraud.
In Kentucky, estates with greater than $30,000 in probate assets are typically subject to probate and must be administered through the probate courts.
While people tend to want to avoid probate, it serves the valuable purpose of preventing fraud after someone’s death. No one can touch the estate until a judge determines that:
- The will is valid
- All the relevant people have been notified
- All the property has been identified and appraised
- Creditors and taxes have been paid.
At that point, property can be distributed and the estate is closed.
When is Probate Not Necessary?
Probate is not necessary in several situations in Kentucky.
How much your estate is worth and how each asset is titled are the factors that determine whether probate is necessary. Situations where probate is not necessary include:
In Kentucky, if you have a small estate, it may not have to go through probate. You do not have to go through probate in circumstances where the will leaves no personal property, or there is a surviving spouse and the value of property subject to probate is $30,000 or less, or if there is no surviving spouse and someone else has paid at least $30,000 in preferred claims. In these cases, there is a simplified probate process for small estates, often called a “summary probate,” that makes it easier for survivors to transfer the deceased person’s property.
Assets that are titled so they can be passed on without going through probate
Even if your estate is greater than the $30,000 threshold, you may still avoid probate if you have certain assets that are titled so they are not subject to probate. These assets include:
- Joint tenancy — While assets that are held individually have to go through probate, assets that are jointly owned with a right of survivorship usually are not subject to probate. The surviving joint tenant becomes the automatic owner.
- Tenancy by the Entirety or Community Property with Right of Survivorship – in this situation, which is just for married couples, the survivor owns the entire property at the death of the other tenant.
- Policies and Accounts with Beneficiary Designation – Examples include bank accounts, brokerage accounts, retirement accounts, and life insurance policies that have named beneficiaries who are entitled to the assets in the account or the proceeds of the policy.
- Assets in a Living Trust – Revocable Living Trusts are often created because the assets in them are not subject to probate. The trust is set up by a person called the trustor, who designates a person, called a trustee, to hold property for their beneficiaries. You can make yourself the trustee and keep full control over all property held in the trust while you are alive. You also designate a successor trustee, often a spouse or a child, to handle and distribute your property after you die.
Is Probate Needed When There is no Will?
If you do not have a will or it is determined that only part of the estate is covered by a valid will, probate will be necessary to establish who gets what and to supervise the distribution of assets and legally transfer title to creditors, heirs, and beneficiaries. Generally, cash, personal property, real estate, assets held as tenants in common, and named beneficiary assets that do not name anyone are subject to probate.
Even if your estate does not require probate, it still may be a good idea to consider opening probate in Kentucky for the following reasons:
- Creditor claims – Kentucky has no time limit or statute of limitation on creditor’s claims, so creditors may attempt to collect on assets years after a death. If probate is filed, creditors are limited to six (6) months from the appointment of the executor or administrator in which to file a claim.
- Distributing assets – Probate requires that the assets that make up an estate have to be distributed in a specific order. Creditors typically are paid in the following order: estate administration costs, family allowances, funeral expenses, taxes, and debt. Beneficiaries named in the will receive the remainder of the estate.
- Preventing lawsuits – Probate can be helpful if you die while faced with a potential lawsuit. All debts will be settled, which can be beneficial to your survivors.
Call Our Kentucky Probate Attorneys for Help with Probate and Estate Planning
People often try to avoid probate because it can be time-consuming and expensive. The average time to complete probate is approximately six to eight months, and cases can take years if the estate is very large, or if someone challenges the will. Probate costs 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. When you meet with us, we will examine your unique situation and help determine the best way to handle your estate to protect your best interests and those of your beneficiaries. 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.