Picture this scenario – a beloved family member, such as a parent, has recently passed away unexpectedly. Routinely, the very first question we get asked is: “What do I do next?”
Whether a person dies with a Last Will and Testament or without one, their estate will go through the process known as “probate.” During probate, the Court will oversee the administration of the estate to ensure that all relevant statutory rules are enforced, and to ensure that any person serving as the Personal Representative of an estate upholds their fiduciary responsibilities to the beneficiaries of the estate. The primary distinction in probate, then, turns on the simple fact of whether the deceased person died having made a Last Will and Testament, or if they died without.
When an individual dies having made a Last Will and Testament in Kentucky, the legal term to describe this situation as the individual dying “testate.” The probate administration of a testate estate is designed to ensure that the deceased person’s final wishes, as specified in their Last Will and Testament, are honored and that distributions of the deceased’ property is made in satisfaction of the terms found in that Last Will and Testament. It is important to have an estate plan, including a Last Will and Testament, to ensure that your final wishes with respect to who receives your property (and in what proportions) is honored by the Court.
When someone dies without a Last Will and Testament in Kentucky, the legal profession calls this situation “INTESTACY.” When an individual dies intestate, the laws of the Commonwealth of Kentucky specify exactly who will receive the deceased’s property, including real estate and personal property, and in what proportions those “heirs at law” will take. The intestacy statutes also make specific provisions regarding who can start the process of administering the estate, and these statutes also include special rules for how and when estate assets (such as real estate) can be sold by the estate.
The first issue typically seen when it comes to probate administration of an intestate estate is the question of who can file the petition? Kentucky statutes provide that the Court will grant administration to the “relations of the deceased” who apply for administration within sixty (60) days of the date of death. That means that the surviving spouse (husband or wife), or if there is no surviving spouse then any heir who is entitled to distribution from the estate of the deceased can apply for probate administration and will have the preference to serve as the “Administrator” of the decedent’s estate, so long as they file the Petition for probate within the first sixty days after the date of death.
The next issue, then, is who is “entitled to distribution” in an intestate estate? As previously mentioned, in Kentucky there is a specific statute which determines “intestate succession” - the exact order of who is entitled to a share (or all) of the estate of a person who dies without a Will. You may be surprised to find that the surviving spouse, for example, is fourth in line behind the decedent’s children (and the children’s children too!), parents of the decedent, and the siblings of the decedent. Which means that in an intestate administration, you can come across situations where a deceased, who has no children but leaves behind surviving parents or siblings, are entitled to distribution of the estate under the rules of intestate succession before the surviving spouse!
Now of course, there are exceptions that protect a surviving spouse so that they cannot be disinherited of all their deceased spouse’s property in intestacy, but those exemptions do not give the surviving spouse a 100% interest in the decedent’s estate in intestacy. As a result, the statue that defines intestate succession can create unexpected (and unfavorable) outcomes when a person dies without a Will.
Therefore, two things should be very clear for any person who has recently lost a loved one and has questions about how to begin the process of administering the probate estate of a person dying without a Will:
- Make sure you retain the assistance of a qualified Probate attorney to guide you from start to finish in an intestate probate administration; and
- Update your own estate plans (or put one into place if you currently don’t have one) so that you can identify exactly who you wish to receive your property at your passing, and thereby avoid the pitfalls of intestacy.