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Probate FAQs

Probate law can be a confusing process if you are unfamiliar with it, and chances are that you are unfamiliar with it. Below are answers to some general questions about probate in Kentucky. If you need assistance in the probate process in Louisville or other communities in Jefferson or Oldham counties, the probate attorneys at John H. Ruby & Associates can provide you with the advice and representation you need.

How long does probate take?

Probate involves many steps; some of them are simple, and some of them can be complex. Probate involves filing the petition to open the estate and locating and proving the will in court. All the financial matters of the estate must be wound up, and this can include paying any bills, debts and taxes of the estate, collecting debts which are owed to the estate, and otherwise resolving claims. All of the assets of the estate must be collected, appraised, inventoried and managed appropriately so that claims can be paid and so the assets can be distributed according to the terms of the will. A final tax return must also be prepared and filed. All of these activities take time.

By law, the final settlement of the estate cannot take place until at least six months from the time of the appointment of the personal representative. This is the minimum time probate will take. It can take longer depending upon the nature and complexity of the estate assets, and whether there are any disputes regarding the administration of the estate.

Is probate expensive?

There are many costs associated with probate, including court costs and fees for attorneys, accountants, appraisers, and the executor. Most of these professionals charge by the hour, so the cost of probate may depend on the complexity of the estate and whether any matters require litigation to resolve. The cost of probate is generally about 5% of the value and income generated by the estate, but it could be more. The costs of probate are paid out of the estate.

What does the executor do?

The executor is the person named in the will to shepherd the estate through probate. If no executor is named, the court appoints an administrator to perform the same function. Either the executor or the administrator may be referred to as the personal representative of the estate, so if you see any of these three terms, keep in mind that they all refer to the same role.

The executor takes on the tasks of collecting and inventorying the assets of the estate, filing the inventory with the court, settling claims by paying debts or disputing them, filing and paying taxes owed by the estate, and other duties. An executor is a fiduciary who must act in good faith and perform to the best of his or her ability. The executor may employ accountants, attorneys and other professionals to assist in these tasks.

Can probate be avoided?

There are many ways that you can transfer property to another without having to go through probate. For instance, any assets held in trust do not have to be submitted to probate. Also, property which is held in joint title with a right of survivorship will pass to the other joint owner without the need for probate. In addition, money in “payable on death” or “transfer on death” accounts does not need to be probated. These accounts include certain bank accounts, IRAs, 401(k) plans, and life insurance policies with named beneficiaries.

If all of the property in the estate is accounted for in instruments such as these, it is possible to avoid probate. However, some probate is usually required to give effect to the will and make sure the estate is settled properly. Utilizing trusts and other mechanisms can minimize the time and expense of probate, but may not completely avoid it.

Probate in Kentucky can be avoided in the case of certain small estates. If the estate assets equal $15,000 or less, a surviving spouse or surviving children can petition the court to dispense with administration and transfer the estate assets directly to them.

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