What Really Happens in Probate? Part One
Written by Jim Worthington on September 9, 2018
Recent articles have discussed how to use trusts to avoid probate and what happens in Kentucky when you die without a will. It is now time to describe the probate procedure itself. Because probate involves too many steps to cover in one sitting, this article is the first of a series of three about what happens in probate court.
Probate in Kentucky starts with a petition to probate the will and to appoint the personal representative. The personal representative is called the executor or executrix when there is a will or the administrator or administratrix when there is not a will. That petition is heard in open court in District Court. Larger counties have dedicated probate divisions or probate days while smaller counties hear probate cases on the same day as other cases. The lawyer appears in court and requests the court to do two things if there is a will: (1) accept the tendered instrument as the last will and testament of the person who passed, and (2) appoint the person nominated in the will as the personal representative of the estate. If there is no will, i.e., the person died intestate, the second step is the only step and involves appointing someone, usually a family member, as administrator or administratrix.
Most modern wills are self-proving so the witnesses do not have to go to court. Self-proving means that the testator or testatrix, the person who made the will, signed it in front of two witnesses, and a notary acknowledged the testator’s or testatrix’s signature and those of the two witnesses. In addition, the witnesses must declare that the testator or testatrix was over 18, appeared to be of sound mind, and did not appear to be under any undue influence. The form for the notary’s acknowledgment follows:
We, ________________, _________________, the witnesses, sign our names to this instrument, being first duly sworn, and do hereby declare to the undersigned authority that the testator signs and executes this instrument as his last will and that he signs it willingly (or willingly directs another to sign for him), and that each of us, in the presence and hearing of the testator and in the presence of the other subscribing witness, hereby signs this will as witness to the testator’s signing, and that to the best of our knowledge the testator is eighteen (18) years of age or older, of sound mind, and under no constraint or undue influence.
This paragraph comes directly from the Kentucky Revised Statutes.
Once the District Court judge admits the will to probate, he or she appoints the personal representative, who must take the oath of office. After taking the oath of office, the personal representative signs a bond that he or she will faithfully discharge the duties of the office. Some courts permit the person seeking appointment to appoint the attorney as an agent to take the oath and to sign the bond.
Most wills waive the requirement of surety on the bond. Surety means an insurance company or someone with sufficient property agrees to make good on the bond if the personal representative can’t do so. If the will doesn’t waive the requirement of surety or if there is no will to waive that requirement, the beneficiaries must waive it. Otherwise, the person seeking appointment generally pays an insurance company for a bond. This is an expense of the estate, not of the individual.
Once the District Court appoints the personal representative, the clerk of court issues a Certificate of Qualification, often referred to as a “Qual.” This is the paper that the personal representative uses to show that the Kentucky court appointed him or her to conduct the estate’s business. Other states use the terms “letters testamentary” or “letters of administration” so one may see those phrases in some financial institutions’ instructions for closing or transferring accounts.