Estate Planning and Administration FAQ

Q: How much compensation do I receive for being an Executor?

A: An Executor's fee is typically limited by statute. In Kentucky, an Executor may be paid up to 5% of the value of the decedent's personal estate. Additionally, if he collects additional money for the estate while serving as Executor, he is entitled to collect 5% of this income or additional "personal property." In some instances, the court may approve further compensation for an Executor if he has performed additional, extraordinary, services in the administration of an estate. The Will itself may also restrict Executor's fees.

Q: What rights do I have as a beneficiary?

A: A beneficiary is a person or organization who inherits assets or property from the estate, as specified in a Will or pursuant to state intestacy laws. A beneficiary is entitled to know that he is a beneficiary, and the assets to which he is entitled. However, as creditors with valid claims against the estate may take priority over beneficiaries interest, it may not be possible for a personal representative to assess what each beneficiary will receive until creditors' claims have been settled or litigated. A personal representative must use reasonable diligence when administering the estate, however, a beneficiary does not have the right to micro-manage the estate or make unreasonable demands of the personal representative. A beneficiary may benefit from seeking their own counsel if a situation exists in which a personal representative is not in compliance or when there are legitimate disputes regarding the validity of the Will or the proper distribution of assets.

Q:How long does the probate process take?

A: In Kentucky, creditors have six months to make claims against the estate, so if opened, the estate must remain open for at least that long. However, the duration of the probate can vary substantially. A number of factors, including but not limited to, the complexity of the estate, valuing property, selling the real or personal property, settling creditors' claims against the estate and/or resolving conflicts amongst beneficiaries, can affect the process.

Q: If I'm appointed as a personal representative (Administrator or Executor), do I need an attorney's assistance?

A: It is advisable to seek counsel of an attorney before you ask the court to appoint you as the personal representative for an estate. However, if you have already been appointed, a probate attorney can provide valuable legal advice as to what your duties are and how to fully comply with them. An attorney can also discern possible problems or conflicts that may arise through the process. Kentucky does not require that a personal representative have an attorney, but if you have any questions or concerns, a consultation can be invaluable. If you do choose to retain an attorney, the fees generally may be paid out of the estate.

Q: What are the duties of the personal representative (Administrator or Executor)?

A: If there is no valid Will at the time of death, the court will appoint an "Administrator" or "Administratrix" to handle the distribution of assets in accordance with state intestacy laws. If there is a Will, an "Executor" or "Executrix" is appointed to distribute the assets in accordance with the terms of the Will and the applicable law. A personal representative has clear duties while carrying out the administration of an estate, including but not limited to the following:

• Inventorying estate assets;
• Paying valid debts and liabilities of the decedent as appropriate, and at the appropriate time;
• Distributing assets lawfully;
• Filing necessary paperwork in the probate action;
• Providing necessary notices to beneficiaries and other interested parties;
• Undertaking to defend interests of the estate in the event litigation is filed against the estate;
• Maintaining certain estate assets so as not to diminish their value; and,
• Filing necessary tax documents.

Q: How soon should an estate be opened?

A: The estate administration process begins by filing a Petition in the court record, asking the court to appoint a personal representative, and if applicable, to "probate" a Will. In Kentucky, as in most states, the Petition is filed in the county where the decedent resided when he or she died. This should occur as soon as possible, and an estate attorney can start the process if you choose to retain one.

The appointment of a personal representative allows access to accounts and other information about the decedent's assets, and it allows the creditor's period to begin running. In Kentucky, creditors have up to six months to make claims against the estate; so under most circumstances, you should expect the estate to remain open for at least that long.

Q: How do I avoid probate?

A: In order to avoid probate, assets must be titled in a way that enables them to pass automatically upon one's death. There are several estate planning strategies that may assist in accomplishing this, such as joint tenancies with a right of survivorship, payable on death accounts, or certain living trusts. The pros and cons of avoiding probate should be weighed carefully, and it is advisable to seek the assistance of an attorney when doing so.

Q: What is included in my estate?

A: Your estate includes all the property that you own or have an interest in at the time of your death, with a few exceptions. Your estate may include real property (land, house, etc.), household items (furniture, décor, clothing, etc.), automobiles, stocks and bonds, and other tangible items. Your estate may also include intangible items such as business interests, intellectual property, contracts, debt owed to you at the time of your death, or even your interest in another estate.

Certain items pass outside the estate. Such items can include real estate that is owned with a "right of survivorship," certain joint bank accounts, or certain accounts (pension, life insurance, etc.) which have a named beneficiary.

Q: What is a Will contest?

A: A Will contest occurs when an individual wants to challenge the validity of a Will. Typically a Will is challenged by an individual who stood to benefit more under the decedent's prior Will, or under the laws of intestacy, than under the Will that was offered into probate. In order to contest a Will, an individual with standing files a lawsuit which sets forth the basis for that individual's belief that the court should declare the probated Will invalid and set it aside in favor of a prior Will or intestacy laws. In Kentucky, such grounds may include:

• The Will does not conform to specific technical requirements of execution;
• The testator (the individual who made and signed the Will) lacked the requisite capacity to execute a Will on the day and at the time it was executed; or
• The Will was procured through undue influence.

Generally, only those who are named in the Will or those who would inherit under the laws of intestacy can contest the validity of the Will. There are also very specific requirements related to who must be named as a party in a Will contest.

Q: What is a Living Will?

A: A Living Will is a legal document that provides direction about your desires regarding certain medical treatment and life-sustaining care in the event you are no longer able to communicate. A Living Will provides authority for someone else to make decisions for you based on your stated desires, but only if you lack the capacity to do so.

Q: What if I die without a Will?

A: When a person dies without a Will it is referred to as dying "intestate." State statutes direct who will receive your real and personal property if you die intestate, and such laws are referred to as "intestacy laws" or "laws of intestacy". In most cases, a personal representative known as an Administrator/Administratrix will still need to be appointed to administer your estate according to the laws of intestacy.

Q: Do I need an attorney to help me write my Will?

A: Your Last Will and Testament (your "Will") is an extremely important document that will determine how your assets will be distributed after your death. The laws regarding estate planning and administration are very precise, complex and can sometimes be counter-intuitive. Thus, it is advisable to seek legal counsel to ensure the document is drafted properly, with the requisite language and in accordance with state law, and that it accurately reflects your wishes. The manner in which your Will is executed is also important, as improper execution could result in it being deemed invalid.

In Kentucky, while individuals may prepare Wills in their own handwriting, such Wills, otherwise known as "holographic" Wills, have specific requirements that must be met to ensure their validity. For many reasons, holographic Wills are not advisable.

It is particularly recommended that you seek counsel if one or more of the following circumstances are present:

• You have substantial assets and/or real property.
• You own your own business and want to specify how it will continue, or be concluded and distributed, after your death.
• You have concerns that there may be disagreements among family members or friends about the validity and wishes in your Will.
• You want to specifically disinherit someone who would otherwise inherit property from you under your state's intestacy laws.
• You currently hold title to real estate, which may need to be sold upon your death.

Q: How long does the probate process take?

A: In Kentucky, creditors have six months to make claims against the estate, so if opened, the estate must remain open for at least that long. However, the duration of the probate can vary substantially. A number of factors, including but not limited to, the complexity of the estate, valuing property, selling the real or personal property, settling creditors’ claims against the estate and/or resolving conflicts amongst beneficiaries, can affect the process.