Will and Probate Requirements in Kentucky

by Bernadette A. Safrath

When a person dies in Kentucky, most of the property in his estate passes through the state's probate process. During probate, the executor -- the person named in the deceased's will to administer the estate -- collects the assets and dgtermines their value. The deceased's will must be authenticated before the property is distributed to the beneficiaries as instructed in the will. Certain assets, including property owned jointly, life insurance policies and any property in trust, can avoid probate and will pass automatically to the named beneficiaries.

Wills

Kentucky law requires that a person making a will be mentally competent and at least 18 years old. The will document must be in writing, and the testator, the person making the will, must sign it. The will signing must take place in the presence of two witnesses who must also sign the will. Handwritten, or holographic wills, are valid in Kentucky if a credible witness testifies that the will is in the deceased's handwriting. To be valid in Kentucky, a will must be either handwritten or typed -- nuncupative, or oral wills, are not recognized in the state.

Probate

The executor, the person appointed to administer the estate, must first locate the will and file it with the probate court in the deceased's county of residence, along with an AOC-805 form, which is a petition requesting that the court formally appoint the executor. This allows the executor to begin collecting the deceased's assets and later distributing them to the beneficiaries. The court will accept the will as valid if at least one witness appears in court to affirm the deceased's identity and that he was competent at the time of making the will. In the case of a "self-proved" will, this type of validation is not required. To be valid, a self-proved will must contain the specific language found in Kentucky Revised Statute 394.225, the testator's signature, the signatures of two witnesses and an affirmation by a notary public.

Executor Responsibilities

Once appointed, the executor is responsible for taking possession and control of the assets in the estate. Sixty days after appointment, he must submit Form AOC-841,an accounting of all assets and their value at the time of death. The executor must notify all beneficiaries named in the will of their pending inheritances and is required to pay all outstanding debts and taxes before any assets are distributed. The executor is also responsible for selling assets if directed to do by the will. Finally, the executor must disburse the estate's assets to the deceased's beneficiaries in accordance with his wishes. Distribution of assets cannot occur earlier than six months after the executor's appointment. A final settlement showing all disbursements must be filed with the probate court using Form AOC-846.

Bond and Surety

Kentucky law requires that the executor, also known as a fiduciary, signs a bond at the beginning of the probate process. This bond is the fiduciary's promise that he will properly perform the duties required by law in his role as executor of the decedent's estate. The executor must also post a surety on this bond. The surety is insurance, which may be provided by a third party individual or insurance company. It will be used to pay beneficiaries in the event that the executor acts improperly. Kentucky law permits an executor to forgo the surety if the will does not require it and all beneficiaries agree that it is not necessary.