When a person dies, his or her estate is subject to court-supervised administration, a process referred to as probate. Probate enables persons who are entitled to receive it to inherit a decedent’s property, pursuant either to the terms of a will or Kentucky laws of intestacy, when the decedent dies without a will. Property – such as transfer-on-death accounts, survivorship interests, and trust accounts – that transfers automatically is not subject to probate. Title 34 of the Kentucky Revised Statutes governs probate proceedings in the Commonwealth of Kentucky.
The probate division of the district court handles probate for estates located in the district. To initiate probate proceedings, a decedent’s will must first be proven in court. If there is no will, persons with priority to administer the estate may petition the court for probate and the granting of letters. The letters authorize the personal representative to act as the estate’s fiduciary.
The personal representative (PR) is called an executor when granted letters testamentary, or an administrator when granted letters of administration. Executors are persons named in the decedent’s will to become the PR of the estate upon the testator’s death. Administrators are selected by the court when the decedent either does not leave a will, fails to name an executor in the will, or the named executor is unwilling or unable to serve.
The PR may be instructed by will to sell the decedent’s real property. In other instances, he or she may need to sell real property in order to generate funds to pay the estate’s debts, relevant taxes, valid claims on the estate, or costs of administration, or to consolidate the estate for ease of distribution. When the PR is not explicitly directed by will, he or she is required to get court approval before selling estate property.
To transfer real property pursuant to a sale or to fulfill a devise or distribution pursuant to a will or laws of intestate succession, the PR must execute a deed. The deed transfers title to the named grantee for the consideration noted on the face of the document.
The personal representative’s deed is named after the grantor’s role – an executor uses an executor’s deed, an administrator uses an administrator’s deed. The forms are functionally equivalent to a special warranty deed (KRS § 382.040), which states that the grantor warrants the title only from claims arising during the time he or she held it.
Personal representative’s deeds must meet all requirements for standard conveyances, such as a complete legal description of the property subject to transfer, a recitation of the source of title, a consideration statement signed by both parties and notarized, and a preparation statement signed by the preparer. In addition, deeds executed by PRs must state the name of the PR and his or her capacity, as well as the name of the decedent, the district wherein probate of the estate is open, and the case number assigned to the estate by the court. The PR must sign the completed document in front of a notary before recording in the office of the appropriate county clerk.
Before closing the estate, the personal representative must file an affidavit in the office of the county clerk describing each transfer of interest in the decedent’s property, the value of each interest, and the names and addresses of each recipient (KRS § 382.135(4)).
Note that, when a person has inherited real property from an intestate estate by descent, an affidavit of descent (affidavit of heirship) is required before he or she may convey the property in the future. See KRS § 382.120.
Available Kentucky Probate Documents:
Always consult a lawyer with questions regarding estate administration and PR deeds in Kentucky, as each situation is unique.