What is the purpose of probate?
December 23rd, 2021 by Bunch & Brock
The purpose of probate in Kentucky is to ensure that the assets of a person who has passed away are transferred to the rightful heirs. Probate can happen with or without a will, though the presence of a valid will often makes the probate process easier. A will ensures that the deceased person’s wishes are carried out explicitly, whereas the absence of a will means the court will determine who inherits what, based on Kentucky’s succession laws. This may or may not reflect what the deceased person intended. The purpose of probate is also to make sure all debts, claims, and taxes are paid before assets are distributed to beneficiaries.
There are three steps in the Kentucky probate process:
- File a Petition
A probate petition and filing fee must be filed with the district court clerk in the county where the deceased person lived.
- Create an Inventory
The personal representative or executor of the will must file an inventory of the deceased person’s assets within two months.
- Achieve a Final Settlement
The executor of the will files with the court an accounting of all disbursements and receipts.
A skilled and experienced Kentucky probate attorney can help walk you and your family through the probate process with efficiency and compassion.
How does probate work?
Probate is a court-supervised legal process to settle an estate after someone’s death. In the probate process, a personal representative 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. This representative is an executor named in the will or a representative appointed by the probate court if there is no will.
The purpose of probate is to prevent fraud after someone’s death. No one can touch the estate until a judge determines that …
- The will is valid (if one exists).
- All of the relevant people have been notified.
- All of the assets have been identified and appraised.
- Creditors and taxes have been paid.
After this is done, assets can be distributed among beneficiaries and the estate is closed. Regular probate can take several months, but there’s also a shortened version of probate for individuals with modest estates.
Small Estates and Summary Probate
In 2020, Kentucky General Assembly raised the small estate limit from $15,000 to $30,000.
In Kentucky, small estates – those less than $30,000 – can go through an abbreviated process known as “summary probate.” This requires an individual to appear only once in court, and the process is over quickly. In 2020, the Kentucky General Assembly raised the small estate limit from $15,000 to $30,000 (Ky. Rev. Stat. Ann. § 391.030), which means many more estates can now qualify for summary probate.
Probate courts are state courts. In Kentucky, the simplified probate process for small estates makes it very easy for beneficiaries to receive assets. The process is available when…
- the will leaves no personal property,
- 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, the proceeds go to the children.
A surviving spouse can petition the court to get permission to withdraw up to $2,500 from a bank or depository account in the deceased spouse’s name before the summary probate is settled.
To determine whether an estate qualifies for this shortcut or whether it must be subject to regular probate, consult a Kentucky estate planning attorney to review your options.
Some Assets Can Avoid Probate
There are some types of assets that can avoid the probate process altogether. These include:
- Policies and accounts with a beneficiary designation, such as checking and savings accounts at a bank, brokerage accounts, life insurance policies, IRA retirement accounts, etc.
- Assets in a living trust
- “Tenancy by the entirety” or “community property” with right of survivorship
- Cash, personal property, real estate, assets held as tenants in common.
Dying Intestate/Without a Will in Kentucky
If someone dies without a will in Kentucky, then his or her assets will be distributed based on Kentucky’s succession laws. Generally, if there is a surviving spouse, then he or she will receive half of the deceased person’s estate under succession laws. A court will distribute the remaining half of the estate to a living heir in the following order, based on level of connection to the deceased:
- Deceased’s children and their descendants. If none, then …
- Deceased’s father and mother. If neither are living, then …
- Deceased’s brothers and sisters and their descendants. If none, then …
- The deceased’s husband or wife. If none surviving, then …
- Deceased’s grandparents. If none, then …
- Deceased’s aunts and uncles and their descendants. If none, then …
- Deceased’s great-grandparents. If none, then …
- The brothers and sisters of the deceased’s grandparents, and so on, passing to the nearest lineal ancestors and their descendants.
Kentucky does not collect an estate tax, but the IRS does collect a federal estate tax in many circumstances.
Assisting Creditors in the Probate Process
The probate attorneys at Bunch & Brock not only represent estate heirs, but we also represent creditors who are seeking payment of debts in the probate process. If you or your business has debts owed by a person who has died, you are entitled to collect those debts from the deceased person’s estate before remaining assets are distributed to beneficiaries. Our attorneys can file a claim on your behalf to make sure these debts are paid. We have represented many creditors in these cases, and we would be happy to speak to you about your situation.
Contact Bunch & Brock Probate Attorneys Today
If you want help drafting a will or need legal representation throughout the probate process after the death of a loved one, the probate lawyers at Bunch & Brock can help. Dealing with a loved one’s estate can be a difficult time for the family. We are highly skilled and experienced in probate law and have helped countless clients with end-of-life legal issues. To find out more about how we can help, call us at 859-254-5522.