When someone dies without a will, the state’s probate laws guide both the process for transferring their assets and the determination of who receives those assets.
Jump ahead to these sections:
- Kentucky’s Intestacy Laws Explained
- How Does Probate Work in Kentucky If There Is No Will?
- Who Typically Inherits Assets in Kentucky If There Isn’t a Will?
- Frequently Asked Questions: Dying Without a Will in Kentucky
Kentucky makes the process as user-friendly as possible through free forms, making it possible to file and navigate the probate process without an attorney. While the process is not as daunting as in other states, the outcome of Kentucky’s intestacy laws can yield some unwelcome surprises for the decedent’s surviving spouse.
Kentucky law divides the decedent’s estate between the surviving spouse and other heirs, including the decedent’s parents, making it a state where you strongly consider making a will.
Kentucky’s Intestacy Laws Explained
When someone passes away, their assets either transfer through non-probate means or become part of their probate estate. The state’s intestacy laws determine the heirs of the probate estate.
Non-probate transfers and determining the probate estate
Some forms of estate planning are surprisingly simple—so much so that the average person wouldn't identify it as estate planning when asked. Non-probate transfers through payable-on-death beneficiary designation override the laws of intestacy and even wills. Assets subject to these transfers do not become part of the decedent's probate estate.
Most of us make these designations when opening financial accounts or buying life insurance policies. You might also find payable-on-death designations on safe deposit boxes, retirement accounts, pensions, and health savings accounts.
Beneficiaries of accounts with the payable-on-death designations should be able to collect the account with proof of the decedent's death and their own identity.
Beyond payable-on-death designations, look for non-probate transfers in the forms of property held in a trust, real property titled as joint tenants with right of survivorship, and real property with a beneficiary deed on file.
Some people estate plan by creating a living trust during their lifetime. That trust continues to function after their death. It removes property from the probate estate, but it also gives the property owner and their heirs more privacy by keeping the process outside of the court system. Generally, people with a trust also have a will that pours over any outstanding assets in the trust, but it's possible the decedent could have lost the will or revoked it somewhere along the way.
To determine whether the decedent's real estate is part of the probate estate, look at the deed on file with the clerk's office in the county where the property is located. Real property titled as joint tenants with the right to survivorship transfers without the probate process's assistance. The surviving co-owner becomes the full owner of the property upon the other owner's death.
Kentucky also recognizes beneficiary deeds, which transfer real estate upon the owner's death to the named beneficiary.
How Does Probate Work in Kentucky If There Is No Will?
Opening a probate case allows an heir or other interested party to ask the court to appoint an estate administrator. Once appointed, that administrator has the authority to secure the decedent’s assets, pay the decedent’s debts and estate taxes, and distribute the assets according to the laws of intestacy.
At the conclusion of the estate administration, all of the assets should be transferred out of the decedent’s name and into the new owners’. Sometimes, that means directly signing over an asset to an heir. Other times, the administrator has to sell property to distribute it among multiple heirs equitably.
In Kentucky, traditional probate of an estate is also called the formal settlement of an estate. It’s also the most time-consuming and laborious way to take care of an estate without a will.
Under formal settlement, the administrator must provide several reports to the court. These include the distributions to heirs with the corresponding canceled checks and the basis for compensation for the administrator if they request payment. The administrator will need to keep close records of all transactions in and out of the estate for the court’s approval.
If all the decedent's heirs are willing to sign a notarized waiver affirming they received their share of the estate and that they waive the accounting requirements of formal probate, the court can accept the informal settlement of an estate.
Under informal settlement, the administrator must also provide proof of distribution of the assets and either proof of payment of state inheritance taxes or an affidavit of exemption of the taxes.
Petition to Dispense with Administration
Very small estates may be able to skip probate through a petition to dispense with administration.
Kentucky law allows for heirs of estates valued at $30,000 or less to get a court order to transfer property without going through a full probate process. The surviving spouse can petition to dispense with administration, and so can a surviving child, provided all surviving children agree. If the court grants the petition, the spouse or children receive an order transferring the decedent’s property to them.
Preferred creditors can also request the dispensation of administration. Preferred creditors include those who the decedent owes for the costs of probate, funeral expenses, taxes, and other priority debts. Any person, including the spouse or children, can provide proof of paying these expenses and request that the estate be transferred to them as a preferred creditor. Only the amount paid is transferred to the preferred creditor, not the entire estate.
Who Typically Inherits Assets in Kentucky If There Isn’t a Will?
Kentucky intestacy laws are not as favorable to the surviving spouse as in other states. Conversely, the decedent's descendants—children and grandchildren—have more opportunities to inherit in Kentucky than in other states.
The decedent's descendants would inherit everything if the decedent had no spouse at the time of their death. If the decedent was married at the time of their death, inheritance gets a little more complicated. In this case, the estate becomes divided between the spouse and other heirs. The surviving spouse does not receive the same carte blanche to take all that the children enjoy.
Instead, the surviving spouse's share hinges on the other biological relatives the decedent left behind.
When a decedent dies with both a spouse and descendants, the spouse inherits one-half of the personal property, one-third of the real property to use during their life, and one-half of the real property to sell or give away. Descendants inherit the remainder of the personal and real property.
Even if the decedent did not have descendants, the spouse shares the estate with other family members. If the decedent's parents are still alive, the spouse inherits one-half of the personal property, one-third of the real property for use during their life, and one-half of the real property to sell or give away. The decedent's parents inherit the remainder of the personal and real estate.
The same inheritance structure applies if the decedent is survived by a spouse and siblings.
Kentucky’s complicated calculations come from recognizing the spouse’s share—also called the dower or curtesy in legal terms.
The spouse’s share tries to balance the competing interests when someone dies. A surviving spouse shouldn’t be left destitute or without a home. Conversely, some states, like Kentucky, place a real emphasis on biological family.
Kentucky intestacy law can create complicated situations with multiple people having competing ownership interests in a property.
Frequently Asked Questions: Dying Without a Will in Kentucky
To best understand how the laws of intestacy can impact your unique family situation, consider consulting a probate attorney. Otherwise, here are a few common scenarios that you might encounter.
What happens when your parent dies without a will?
When your parent dies without a will, you and your siblings are all entitled to an equal share of their probate estate. If your parent was unmarried, you and your siblings take the entire estate.
Alternatively, if your parent was married at the time of their death, you and your siblings split the estate with their spouse. Their spouse inherits one-half of the personal property, one-third of the real property for their use during their life, and one-half of the real property to sell or give away. You and your siblings inherit the remainder of the estate.
What are a surviving spouse’s rights if there’s no will?
The surviving spouse only inherits the entire estate when the decedent dies without descendants, parents, or siblings.
Otherwise, the spouse inherits one-half of the personal property, one-third of the real property to use during their life, and one-half of the real property to sell or give away. The biological relatives inherit the remainder of the personal and real property.
How do you become an executor of an estate without a will in Kentucky?
The court appoints an executor—the administrator—after an heir or other interested party files a petition for probate. The petition for the appointment of administrator can be found free online through the official Kentucky courts legal forms page.
The court considers the petition and may have a hearing before appointing the administrator.
Kentucky offers the simplified process of dispensation with administration for small estates, and you may be able to resolve outstanding property issues without the appointment of an administrator.
Who is considered next of kin in Kentucky?
The next of kin varies based on who survives the decedent. In order of preference, the next of kin may be the decedent’s spouse, children, grandchildren, parents, siblings, or grandparents.
What does the estate administrator do after being appointed?
The administrator becomes responsible for taking care of all of the business of the estate. Ultimately, that culminates in distributing the estate assets to the decedent’s heirs.
Before the administrator makes final distributions, they pay the decedent’s bills and debts. This can include funeral expenses and final taxes for the decedent and the estate. The administrator also provides notice to creditors, which creates a finite amount of time for anyone to make a claim against the estate.
While some estates can be quick and easy to administer, those with unique or sensitive assets or complicated family situations can take longer.
Does the estate administrator get paid?
Kentucky law allows the estate administrator to collect payment for their services to the estate. The administrator’s compensation is based on the value of the estate. The administrator can collect 5% of the decedent’s total estate and another 5% of the income the administrator collects on behalf of the estate.
Avoid Family Conflict Through Estate Planning
Considering your own death can be sobering, and contemplating how our loved ones will go on without us can be truly painful. Many people delay making a will or engaging in other types of estate planning to avoid those thoughts because they don’t want to show favoritism or upset someone with their choices.
Unfortunately, relying on intestacy laws can lead to severe family discord as they divide property between the surviving spouse and other biological relatives.