Probate Frequently Asked Questions For Louisville And Surrounding Kentucky Area Clients
What is Probate?
Probate is the process by which your last Will is determined to be your final statement and confirms the appointment of the person or institution you have named to administer your estate. The term probate is also used in the larger sense of probating your estate. In this sense, probate means the process by which assets are gathered and applied to pay debts, taxes and expenses of administration, and distributed to those designated as beneficiaries in your Will.
How is a Will probated?
The following is a simplified outline of the general probate process:
- The original Will is deposited with the Court.
- The Executor named in the Will or Administrator is appointed. Executors and Administrators are commonly referred to as Personal Representatives.
- The Personal Representative files a Petition for Probate of the Estate.
- For approximately four months from the date of the Petition for Probate, creditors of the Estate can file claims against the Estate. This would include any prior creditors or judgment holders, debts resulting from last illness, funeral expenses, taxing authorities, etc.
- During this time period, the Personal Representative has to identify and collect assets of the Estate. To do this, the Personal Representative finds all bank and security accounts, debts owed to the Decedent, property owned by the Decedent, etc. The Personal Representative also has to maintain the assets in good condition. This consists of maintaining insurance coverage, collecting rent, protecting assets from theft or damage, etc. The Personal Representative may also liquidate assets such as cars, real estate, etc. during this time.
- When the four-month claims period has expired, and when all assets have been collected, real property sold, and assuming no problems have presented themselves such as the Will being contested, the Personal Representative then files a petition with the probate court to allow a distribution of all remaining assets to the beneficiaries/heirs, and files a detailed accounting with the Court setting forth all monies received, monies disbursed, how assets were invested, and the proposed plan for distribution.
- If the Court approves the plan, the Personal Representative then divides the assets as instructed in the Will, or as required by statute if no Will exists.
The minimum amount of time that the probate process can be completed is approximately six months, but it normally takes longer. Reasons for delays can include Will contests, property cannot be sold, claimants not being notified in the original four-month claim period, etc.
Are there different types of Wills?
There are many types of Wills:
- A Double Will is one in which two people join together; leaving their individually-owned property and estate(s) to the other. This type of Will is also called a Counter Will, Joint and Mutual Will, or Reciprocal Will.
- Holographic Wills are entirely handwritten, dated, and signed by the testator.
- A Living Will, Medical Directive or Health Care Directive is one that authorizes the continuance or cessation of life-sustaining medical treatments from an individual who is incapable of making that decision due to debilitating circumstances.
Probate Attorney Ninamary Maginnis of the Maginnis Law Office can help you or a loved one decide which type of Will is most suitable.
Who should make a Will?
Every adult person should consider making a Will. Each year a large number of people die without Wills, leaving major decisions in the hands of the state of Kentucky. Wills are especially important for parents of children who are under eighteen, as arrangements for the children’s financial support and/or appointed guardian can be determined. Without a Will, any property distributed to minor children could be subject to an expensive court-appointed guardianship, which could greatly affect inheritance. And in some states, if you were married and childless, your parents could split your property with your spouse if not alternatively predetermined in a Will.
How does a trust work?
Trusts are the process by which the grantor transfers legal ownership to a person or institution (called the trustee) to manage the property for the benefit of another person (called the beneficiary).
Trusts create a fiduciary relationship between the trustee and the beneficiary. The trustee must act solely in the best interests of the beneficiary when dealing with the trust property. If a trustee does not live up to this duty, the trustee is legally accountable to the beneficiary for any damage to his or her interests. The grantor may act as the trustee himself or herself, and retain ownership instead of transferring the property. A grantor may also name themselves as one of the beneficiaries of the trust.
If you or someone you know in Louisville, Kentucky, or within the surrounding cities and counties of Kentucky needs the assistance of an experienced probate lawyer, contact Attorney Ninamary Maginnis of the Maginnis Law Office at 866-368-4654 or via her convenient contact form to schedule a consultation with an experienced probate lawyer.