Probate is the legal process for proving a Last Will and Testament valid or invalid, appointing an Executor (or if no Last Will and Testament an Administrator), collecting the assets, paying the lawful debts, and distributing estate assets according to the Last Will and Testament or the laws of the Commonwealth of Kentucky if there is no Last Will and Testament. In Kentucky, a probate proceeding takes place in District Court located in the county where the deceased resided. Once the Order has been entered by the Probate Court officially beginning the probate process, the estate must remain open for a minimum of six months under Kentucky law. This period of time is required in order to allow anyone who may be a creditor of an estate to file a proof of claim.
A petition to begin the probate process can be filed with the Probate Court at any time after the date of death, but must be filed within ten (10) years. However, delaying the probate process for weeks, months or even years can create many pitfalls such as:
- All assets in the sole name of the deceased remain frozen until permission has been granted by the Probate Court to handle these assets. This includes house, automobile, bank accounts, etc. This means that funds will not be available to cover ongoing expenses of the deceased. In addition, no one has authority to make any decisions on behalf of the estate until probate begins.
- If insurance were to lapse on real estate or automobiles due to the estate not being opened to handle same, this can create a liability issue. For example, there is storm damage or a fire occurs in the home, then if there is no insurance coverage in place, this will greatly devalue the asset. Likewise, if someone is living in the house (i.e. spouse) this creates an even larger liability issue.
- Since the probate must remain open a minimum of six months, no distribution can be made to heirs until this time has concluded and all expenses have been paid. Thus, any delay in starting the process just adds to this six month minimum time. This means that heirs who may need their distribution from their estate to cover the living expenses, such as a spouse or children, will endure a hardship until the probate process is completed.
- If an heir to an estate passes away after the deceased, then another probate process will have to be started for this deceased heir’s estate to receive their share of the estate, thus causing more potential delays.
- If inheritance taxes will be due by the estate since some or all heirs are not exempt under the Kentucky Revised Statutes, the return must be filed nine (9) months to receive the early filing discount. By filing after this period, this inheritance tax liability will continue to increase. However, the return cannot be filed until the probate process begins.
- If you have minor children and guardians need to be appointed to care for them as set forth in your Last Will and Testament, this cannot occur until the probate process begins.