Episode 6: In today’s episode, Louisville probate attorney David Holton covers a number of topics and steps that need to occur when you have questions about the validity of a Will. David practices this area of law in many counties across Kentucky. As a retired probate judge and as an attorney, he’s seen many situations involving heirs who have questions about whether a Will is either valid or invalid.
Testate vs. Intestate
As David explained in Episode 2, if a person has a Will when they die, they are considered “testate.” If that person dies without a Will, they are referred to as “intestate.” There are steps that will be taken to distribute the assets of the person’s estate, depending upon the presence or absence of a Will.
However, what happens if the person had a Will, but there are questions about whether that document is valid and enforceable? This could involve the signature, the directives contained in the Will or other important factors.
Self-Proving Wills in Kentucky
A self-proving Will, as David discussed in Episode 5, must be signed by the testator (the person whose Will it is), 2 disinterested witnesses (they are not heirs), and a notary public. The 4 people must have been in the same room and signed the Will at the same time. The Will must contain proper language, including that the testator is signing the will free of duress (i.e. pressure) or other concern about his/her freedom to make the Will. They must be of sound mind and must be 18 years of age or older. If these conditions are met, the fully signed and notarized Will be considered self-proving. This helps the court to accept the Will, without the need for witnesses or other proof.
David shares a story about when he needed to get a hand-writing expert involved in proving the validity of a Will. There may be questions about who actually signed the Will. There are situations in which something about an item(s) listed in the Will seems odd. It’s possible the dates don’t line up.
Scenario #1: The Original Will Can’t Be Found
It’s not uncommon for an original Will not to be found after a person dies. However, as David explains, Kentucky law allows for a copy of the Will to be probated, but the heirs at law will have to sign affidavits that they agree to ask the court to probate the lost Will, based on the copy.
What Does “Heirs at Law” Mean?
When someone passes away, without a Will, the statues in Kentucky law provide of how the assets of an estate are to be distributed and to whom. This is generally the surviving spouse and any surviving children. Each will need to sign off that they agree that the copy of the Will should be probated.
If the original Will and/or a copy cannot be found, the court can probate a lost Will. This would be based on testimony of people who are familiar with the decedent’s particular situation. It’s a complicated situation and it may be difficult to convince the court to proceed, but it is possible.
Scenario #2: You’re Not Sure a Signature on the Will is Valid
Earlier in the episode, David described how a hand-writing expert could be hired to examine and verify the signature. If the results prove the signature is invalid, a lawsuit can be filed in court to challenge the validity of the Will.
To challenge the validity of a Will in court, you must have legal standing to do so. Maybe a person has a copy of an older Will in which they were an heir, but under the more recent version, he/she isn’t included, this would potentially give that person standing to challenge the Will in court. Generally, legal standing would apply to someone who stood to inherit something from the Will.
If the Will is proven to be invalid, the court could refuse to accept that version of the Will. If there is a previous version that is correctly executed and enforceable, the court may rule that that version be probated.
If there is no previous version, the court would rely on the laws of Kentucky, which give the closest living relatives priority for the assets. Again, this can be a living spouse, blood-related children, parents, siblings, and so forth.
What Happens if Someone Dies with an Invalid Will, but without any Living Family?
The items in the estate still need to be distributed. One way to attempt to do this is to involve an heir-search service, which may be able to identify lost or unknown relatives who would be considered heirs to the estate. The estate would be responsible for paying for this service.
If no heirs can be identified, a petitioner can file in court to have an administrator appointed to handle the estate.
Scenario #3: What Happens if the Will Contains an Item that No Longer Exists?
For instance, if the testator owned an item (e.g. a motorcycle) that can’t be found or maybe was sold after the Will was drafted, what happens? David explains that you can’t distribute something that doesn’t exist. The estate is not required to purchase a similar item to then be giving to the heir.
There is specific language you can include in your Will to address this situation, but it’s not actually necessary.
Scenario #4: Assuming the Will is Valid, How Do You Begin the Process?
The easiest way to begin the probate process is to contact an attorney who specifically handles this area of law. David is one such attorney. He can represent estates in all 120 Kentucky counties.
David will help to prepare the petition to have the Will probated. He’ll even be able to handle the probate case, in Jefferson County, without you needing to be present in court. This would involve granting him a limited power of attorney.
In Episode 2, David explained the Duties and Responsibilities of the Executor. He’ll help you to set up a bank account for the estate. He can assist with selling the necessary assets and ensuring the probate process goes as smoothly as possible.
While all of this may sound complicated, David’s job is to make is seem as easy as possible. He takes pride in being able to work with families during this difficult time. When you call his office, he usually answers the phone himself. You’ll be able to speak directly with an attorney who has focused the majority of his career, including his time as a probate judge, handling these matters.
Get You Will Drafted to Protect Your Family and Your Wishes
David is available to work directly with you to draft your Will and other important documents. Unfortunately, many people think they’ll eventually get around to it, but never do. Car wrecks happen. Medical emergencies occur. This could also include setting up a guardianship to make sure your minor children have someone to take care of them, should something happen to you.
Life simply gets complicated and you may not have taken the time to get around to it. Why wait? You can save your family a tremendous amount of stress and expense, if you get your Will drafted now. David can help.
Two Louisville Office Locations:
- Pleasure Ridge Park Office: 9902 Old 3rd Street Road, Louisville, KY 40272
- Fern Creek Office: 5226 Bardstown Rd, Louisville, KY 40291
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For more information about probate and estate planning issues, or to listen to The Blind Judge Podcast, visit http://www.davidholtonlawky.com/.
Check out The Blind Judge Podcast!
Retired Probate Judge David Holton actually has 2 podcasts. In addition to this one focusing on legal matters, his other podcast will focus on community issues, sports, cooking, outdoor activities, politics, history and a variety of other topics, including information about David’s guide dog Coach.
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Disclaimer: This podcast is for informational purposes only. This does not establish an attorney-client relationship. Your situation is unique. Please consult an experienced attorney to discuss your situation. This is an advertisement. Principal Office located at 5226 Bardstown Rd., Louisville, KY 40291. Office phone number: (502) 933-8600.