CHAPTER 391 Descent and Distribution

391.010. Descent of real estate.

When a person having right or title to any real estate or inheritance dies intestate as to such estate, it shall descend in common to his kindred, male and female, in the following order, except as otherwise provided in this chapter:

  1. To his children and their descendants; if there are none, then
  2. To his father and mother, if both are living, one (1) moiety each; but if the father is dead, the mother, if living, shall take the whole estate; if the mother is dead, the whole estate shall pass to the father; if there is no father or mother, then
  3. To his brothers and sisters and their descendants; if there are none, then
  4. To the husband or wife of the intestate; if there are none surviving, then
  5. One (1) moiety of the estate shall pass to the paternal and the other to the maternal kindred, in the following order:
    1. The grandfather and grandmother equally, if both are living; but if one is dead, the entire moiety shall go to the survivor; if there is no grandfather or grandmother, then
    2. To the uncles and aunts and their descendants; if there are none, then
    3. To the great-grandfathers and great-grandmothers, in the same manner prescribed for grandfather and grandmother by subsection (a); if there are none, then
    4. To the brothers and sisters of the grandfathers and grandmothers and their descendants; and so on in other cases without end, passing to the nearest lineal ancestors and their descendants.
  6. If there is no such kindred to one of the parents as is described in subsection (5), the whole to go to the kindred of the other. If there is neither paternal nor maternal kindred, the whole shall go to the kindred of the husband or wife, as if he or she had survived the intestate and died entitled to the estate.

History. 1393: amend. Acts 1956, ch. 132; 1974, ch. 328, § 2.

NOTES TO DECISIONS

1.Application.

This statute is applicable where an infant inherits land and dies after becoming of age and without issue. Bertram v. Witherspoon's Adm'r, 138 Ky. 116 , 127 S.W. 533, 1910 Ky. LEXIS 47 ( Ky. 1910 ). See Kentucky Stave Co. v. Page, 125 S.W. 170 ( Ky. 1910 ); Ganaway v. Ganaway's Adm'r, 246 Ky. 722 , 56 S.W.2d 4, 1932 Ky. LEXIS 824 ( Ky. 1932 ).

2.Moiety.

“Moiety” as used in this section denotes one-half of the estate of the deceased and not the whole of it. Young v. Smithers, 181 Ky. 847 , 205 S.W. 949, 1918 Ky. LEXIS 621 ( Ky. 1918 ).

3.Heirs.

Identity of names, religion and nativity are too common to be alone sufficient evidence of family connection. Ellis v. Dixon, 294 Ky. 609 , 172 S.W.2d 461, 1943 Ky. LEXIS 512 ( Ky. 1943 ).

The testimony of persons well acquainted with the decedent and a probate genealogist, who made a search for heirs of the decedent, that they did not believe that there were any surviving heirs of the decedent was sufficient to support a finding that the decedent left no surviving heirs. Newport Nat'l Bank v. Fick, 294 S.W.2d 521, 1956 Ky. LEXIS 125 ( Ky. 1956 ).

A person claiming as an heir must prove that all persons who stood in an intervening relationship to the intestate are dead. Ryburn v. First Nat'l Bank, 399 S.W.2d 313, 1965 Ky. LEXIS 25 ( Ky. 1965 ).

The intestate’s grandniece and grandnephew could not be heirs where intestate’s brother was living at the time of intestate’s death. Ryburn v. First Nat'l Bank, 399 S.W.2d 313, 1965 Ky. LEXIS 25 ( Ky. 1965 ).

4.— Presumption.

There is a legal presumption that every decedent has heirs, but this presumption may be rebutted. Montz v. Schwabacher, 119 Ky. 256 , 83 S.W. 569, 26 Ky. L. Rptr. 1214 , 1904 Ky. LEXIS 159 ( Ky. 1904 ).

There is a legal presumption that every decedent has heirs, but the presumption may be rebutted either by lapse of time, accompanied by nonappearance of heirs, or by proof of the nonexistence of heirs. Newport Nat'l Bank v. Fick, 294 S.W.2d 521, 1956 Ky. LEXIS 125 ( Ky. 1956 ).

5.— Hearsay Evidence.

Declarations as to family pedigree and history, although hearsay, are admissible if the declarant is dead, the declarations were made at a time when there was no motive to distort the truth, and the declarant was related by blood or affinity to the family whose genealogy is in question, the relationship having been established by evidence other than the statements of the declarant. Ellis v. Dixon, 294 Ky. 609 , 172 S.W.2d 461, 1943 Ky. LEXIS 512 ( Ky. 1943 ).

Where kindred of the intestate’s deceased spouse are claiming the estate on the ground that the intestate left surviving neither paternal nor maternal kindred, the burden of proving the nonexistence of such kindred may be met by hearsay evidence of persons acquainted with the intestate under the exception to the hearsay rule for matters of family history, relationship and pedigree. Davis' Adm'r v. Chasteen, 273 S.W.2d 368, 1954 Ky. LEXIS 1163 ( Ky. 1954 ).

Hearsay testimony is admissible to prove the nonexistence of heirs under the exception to the hearsay rule pertaining to matters of family history, relationships, and pedigree. Newport Nat'l Bank v. Fick, 294 S.W.2d 521, 1956 Ky. LEXIS 125 ( Ky. 1956 ).

6.Paternal and Maternal Kin.

Where the deceased is survived only by his maternal grandmother and uncles and aunts on his father’s side, the grandmother inherits one half and the uncles and aunts inherit one half. Young v. Smithers, 181 Ky. 847 , 205 S.W. 949, 1918 Ky. LEXIS 621 ( Ky. 1918 ).

When the estate is divided into moieties subsection (5) intends that one half of the estate shall pass to the paternal and the other half to the maternal heirs as a class. Brown v. Saunders, 389 S.W.2d 77, 1965 Ky. LEXIS 384 ( Ky. 1965 ).

Judgment that ordered the net proceeds from the sale of a deceased daughter’s property, after the payment of funeral expenses, bank debt, and administration fees, were to be distributed one-half (1/2) to the husband as his dower share under KRS 392.020 minus $2,000 for damages he had caused to the mobile home and one-quarter plus $1,000 each to the parents did not erroneously ignore the parents’ inherited interest under KRS 391.010 ; the debts of the estate had to be satisfied pursuant to KRS 391.030(1) and KRS 395.515 before any distribution of the real and personal property of the intestate daughter. Sanders v. Smith, 2007 Ky. App. Unpub. LEXIS 44 (Ky. Ct. App. Aug. 17, 2007).

7.Partial Intestacy.

Property owned by a testator but not disposed of in his will passes to his heirs-at-law under this section. Todd v. Gentry, 109 Ky. 704 , 60 S.W. 639, 22 Ky. L. Rptr. 1319 , 1901 Ky. LEXIS 34 ( Ky. 1901 ).

As the will made no disposition of the corpus of the estate, it passed to the testator’s three children who were living at his death. Fox v. Burgher, 285 Ky. 470 , 148 S.W.2d 342, 1941 Ky. LEXIS 412 ( Ky. 1941 ).

Where the testator bequeathed interests in the income of his estate to certain relatives with the interest passing to his designated nieces and nephews on the deaths of the primary beneficiaries but no provision was made for the distribution of the corpus, the testator did not die intestate as to the remainder for the fee-simple vested in the remainder beneficiaries. Scheinman v. Marx, 437 S.W.2d 504, 1969 Ky. LEXIS 444 ( Ky. 1969 ).

8.Survivorship of Spouse.

Where husband and wife died on same day, burden was on wife’s administrator, in action to recover wife’s distributive share of husband’s estate, to prove that husband died first. McGraw's Adm'r v. McGraw's Adm'r, 293 Ky. 722 , 169 S.W.2d 840, 1943 Ky. LEXIS 681 ( Ky. 1943 ).

Where wife was found dead on road a short distance from home, and husband was found dead in bed at home several hours later, it was a jury question as to which died first, notwithstanding that position of husband’s body suggested that wife had laid him out. McGraw's Adm'r v. McGraw's Adm'r, 293 Ky. 722 , 169 S.W.2d 840, 1943 Ky. LEXIS 681 ( Ky. 1943 ).

9.Half-blood Kin.

Where the property of an intestate passes under this section to his maternal and paternal kindred and on one side there is only a cousin by the half blood and there are several cousins by full blood on the other, each side takes one half, because KRS 391.050 applies only within a moiety after the division into halves. Brown v. Saunders, 389 S.W.2d 77, 1965 Ky. LEXIS 384 ( Ky. 1965 ).

The only heir on the maternal side, even though a half-blood kinsman, is entitled to one half of the estate under subsection (5) of this section and KRS 391.050 . Brown v. Saunders, 389 S.W.2d 77, 1965 Ky. LEXIS 384 ( Ky. 1965 ).

Where an intestate died leaving as descendants the issue of a brother of the half blood and some aunts and uncles of the whole blood, the issue of the brother of the half blood inherited the entire estate. Ragland v. Shrout, 476 S.W.2d 820, 1972 Ky. LEXIS 391 ( Ky. 1972 ).

10.Adopted Children.

Person lawfully adopted under laws of another state may take under Kentucky statutes of descent and distribution, if the rights of inheritance given to adopted children by the laws of such other state are not inconsistent or in conflict with the laws or policies of Kentucky. Pyle v. Fischer, 278 Ky. 287 , 128 S.W.2d 726, 1939 Ky. LEXIS 423 ( Ky. 1939 ).

11.Brothers and Sisters.

Brothers and sisters of a deceased are entitled to a recovery only upon a showing that the deceased left no surviving spouse, child, or parent. Totten v. Parker, 428 S.W.2d 231, 1967 Ky. LEXIS 523 ( Ky. 1967 ).

Brothers and sisters of the half blood are members not of a succeeding class but of the same class as the full brothers or sisters. Morris v. Sparrow, 459 S.W.2d 768, 1970 Ky. LEXIS 151 ( Ky. 1970 ), cert. denied, 403 U.S. 939, 91 S. Ct. 2254, 29 L. Ed. 2d 718, 1971 U.S. LEXIS 1611 (U.S. 1971), cert. denied, 411 U.S. 985, 93 S. Ct. 2283, 36 L. Ed. 2d 963, 1973 U.S. LEXIS 2466 (U.S. 1973).

Two half sisters of the deceased were not barred from intestate succession by the existence of a daughter of a sister of the full blood. Morris v. Sparrow, 459 S.W.2d 768, 1970 Ky. LEXIS 151 ( Ky. 1970 ), cert. denied, 403 U.S. 939, 91 S. Ct. 2254, 29 L. Ed. 2d 718, 1971 U.S. LEXIS 1611 (U.S. 1971), cert. denied, 411 U.S. 985, 93 S. Ct. 2283, 36 L. Ed. 2d 963, 1973 U.S. LEXIS 2466 (U.S. 1973).

12.Spouse of Intestate.

Where a settlor creates a trust with directions to the trustee that upon the death of the settlor the property is to be distributed to “those persons who under the statute of descent in Kentucky would be the heirs at law” of the settlor, the surviving husband is an heir. Lee v. Belknap, 163 Ky. 418 , 173 S.W. 1129, 1915 Ky. LEXIS 248 ( Ky. 1915 ).

Where the spouse of the intestate or kindred of the spouse claims the realty of the intestate, such claimant must affirmatively prove that the intestate left neither paternal nor maternal kindred and such claimant may not recover alone on the weakness of any contrary claim. Hagedorn v. Reiser, 310 Ky. 657 , 221 S.W.2d 633, 1949 Ky. LEXIS 992 ( Ky. 1949 ).

13.Children.

“Children” as used in law of descent was not confined to issue born in lawful wedlock; but included all children that were made by law capable of inheriting. Drain v. Violett, 65 Ky. 155 , 1867 Ky. LEXIS 40 ( Ky. 1867 ) (decided under prior law).

14.Illegitimate Children.

Illegitimate children under incestuous marriage could inherit from their mother but not their father’s estate. Baker v. Thomas, 272 Ky. 605 , 114 S.W.2d 1113, 1938 Ky. LEXIS 170 ( Ky. 1938 ).

Where testimony of natural mother of alleged posthumous illegitimate child of decedent, decedent’s sister and administratrix, and long-time friend of decedent, who were the only ones to testify, established (1) the nature and duration of the relationship between child’s mother and the decedent which was consistent with decedent being the father of her expected child; (2) that mother and the decedent suspected that she was pregnant and that the decedent informed the witnesses that he was the expectant father; and (3) that the couple planned to be married the weekend the decedent died unexpectedly, and all three witnesses testified to the physical resemblances between child and the decedent, and no contradictory proof was offered by the respondents, the child met the mandated burden of proof by showing with clear and convincing evidence that decedent was his father. Fykes v. Clark, 635 S.W.2d 316, 1982 Ky. LEXIS 268 ( Ky. 1982 ).

A posthumous, illegitimate child has standing in court to attempt to prove paternity, even though the putative father has died between the time of conception and birth. Fykes v. Clark, 635 S.W.2d 316, 1982 Ky. LEXIS 268 ( Ky. 1982 ).

The standard of clear and convincing evidence, rather than a preponderance of the evidence, is the necessary standard which must be met by posthumous illegitimate child attempting to prove paternity. Fykes v. Clark, 635 S.W.2d 316, 1982 Ky. LEXIS 268 ( Ky. 1982 ).

It is as true for a legitimate heir as it is for an illegitimate child that a claim on an estate does not exist prior to the death of decedent since decedent could have at any time executed a will and obviated any considerations of intestacy. Wood v. Wingfield, 816 S.W.2d 899, 1991 Ky. LEXIS 70 ( Ky. 1991 ), modified, 1991 Ky. LEXIS 147 (Ky. Sept. 26, 1991).

Title to real estate owned by an intestate passes directly to the heirs by virtue of this section and this is true whether those heirs are legitimate or illegitimate. Wood v. Wingfield, 816 S.W.2d 899, 1991 Ky. LEXIS 70 ( Ky. 1991 ), modified, 1991 Ky. LEXIS 147 (Ky. Sept. 26, 1991).

The law in effect at the time the life estate ended governed closing of life estate, and since law had been well established that illegitimate children are entitled to inherit from both their mothers and fathers, lower court properly ruled that illegitimate children of testator’s brother were testator’s heirs. Conway v. Childress, 896 S.W.2d 15, 1994 Ky. App. LEXIS 152 (Ky. Ct. App. 1994).

15.Child Without Issue.

When a child dies intestate survived only by its mother, she inherits the decedent’s property subject to liens created by the child during its lifetime. Maxwell's Committee v. Centennial Perpetual Bldg. & Loan Ass'n, 131 Ky. 18 , 114 S.W. 324, 1908 Ky. LEXIS 111 ( Ky. 1908 ).

Where a child inherits land from one of his parents and dies after becoming of age and without issue, the other parent, if the only one surviving, inherits the realty under this section. Gambrell v. Gambrell, 167 Ky. 734 , 181 S.W. 328, 1916 Ky. LEXIS 456 ( Ky. 1916 ). See Kentucky Stave Co. v. Page, 125 S.W. 170 ( Ky. 1910 ).

16.Vested Remainders.

Vested remainder interests of children, who die intestate without issue prior to their interest becoming possessory, are inherited by the parents. Rose v. Bryant, 251 S.W.2d 860, 1952 Ky. LEXIS 940 ( Ky. 1952 ).

Vested remainders pass under the general statute of descent. Saulsberry v. Second Nat'l Bank, 400 S.W.2d 506, 1966 Ky. LEXIS 433 ( Ky. 1966 ).

Where there is no uncertainty as to the person who is to take, and his surviving some particular time or event does not enter into and make a part of the contingency upon which the remainder is intended to take effect, if the remainderman dies before the contingency happens, his interest will pass to his heirs, thus, where a testatrix left property to her son for life then to his wife, if she was living with the son at his death, and to the testatrix’s cousin, if the wife was not, and both the wife and the cousin predeceased the son, the heirs of the cousin took the property. Saulsberry v. Second Nat'l Bank, 400 S.W.2d 506, 1966 Ky. LEXIS 433 ( Ky. 1966 ).

17.Law Governing Distribution.

Since distribution of estate must be in accordance with laws in effect at time of intestate’s death and not at time of distribution where intestate died in 1953, distribution of his estate would be made in accordance with this section as it stood prior to 1956 amendment. Skinner v. Morrow, 318 S.W.2d 419, 1958 Ky. LEXIS 136 ( Ky. 1958 ).

18.Compromise of Claims.

Where, pursuant to a good-faith compromise, the son of the testator paid his sister a sum substantially in excess of the amount bequeathed her by the will, he furnished her adequate consideration for her agreement to relinquish all her claim to the estate. Murphy v. Henry, 311 Ky. 799 , 225 S.W.2d 662, 1949 Ky. LEXIS 1247 ( Ky. 1949 ).

19.Foreign Law.

A foreign judgment determining a course of descent affecting land in Kentucky different from the law of this state would be a nullity, and so of a judgment determining the existence of a lien on realty here for the purpose of satisfying the claim of the widow for her share in the distribution or for her yearly support. Gaskins v. Gaskins, 311 Ky. 59 , 223 S.W.2d 374, 1949 Ky. LEXIS 1059 ( Ky. 1949 ).

The descent and distribution of real property is governed by the law of the state of its situs to the exclusion of foreign laws. Gaskins v. Gaskins, 311 Ky. 59 , 223 S.W.2d 374, 1949 Ky. LEXIS 1059 ( Ky. 1949 ).

Cited:

McGuire v. Whitt, 80 S.W. 474, 25 Ky. L. Rptr. 2275 (1904); Vanover v. Steele, 173 Ky. 114 , 190 S.W. 667, 1917 Ky. LEXIS 414 ( Ky. 1917 ); Mason’s Adm’r v. Mason’s Guardian, 239 Ky. 208 , 39 S.W.2d 211, 1931 Ky. LEXIS 744 ( Ky. 1931 ); Bates v. Hanks, 262 Ky. 556 , 90 S.W.2d 743, 1935 Ky. LEXIS 793 ( Ky. 1935 ); Pierce v. Pierce, 309 Ky. 77 , 216 S.W.2d 408, 1948 Ky. LEXIS 10 72 ( Ky. 1948 ); Bates v. Wilson, 313 Ky. 572 , 232 S.W.2d 837, 1950 Ky. LEXIS 906 ( Ky. 1950 ); Farmers Nat’l Bank v. McKenney, 264 S.W.2d 881, 1954 Ky. LEXIS 706 ( Ky. 1954 ); White v. Hogge, 291 S.W.2d 22, 1956 Ky. LEXIS 361 ( Ky. 1956 ); Kentucky Trust Co. v. Sweeney, 163 F. Supp. 450, 1958 U.S. Dist. LEXIS 2908 (D. Ky. 1958 ); Payne v. Chenault, 343 S.W.2d 129, 1960 Ky. LEXIS 10 2 ( Ky. 1960 ); Graham v. Jones, 386 S.W.2d 271, 1965 Ky. LEXIS 500 ( Ky. 1965 ); Motorists Mut. Ins. Co. v. Richmond, 676 S.W.2d 478, 1984 Ky. App. LEXIS 578 (Ky. Ct. App. 1984); Herren v. Cochran, 697 S.W.2d 149, 1985 Ky. App. LEXIS 589 (Ky. Ct. App. 1985); Crain v. Dean, 741 S.W.2d 655, 1987 Ky. LEXIS 256 ( Ky. 1987 ); Conway v. Childress, 896 S.W.2d 15, 1994 Ky. App. LEXIS 152 (Ky. Ct. App. 1994); Hisle v. Lexington-Fayette Urban County Gov’t, 258 S.W.3d 422, 2008 Ky. App. LEXIS 27 (Ky. Ct. App. 2008); Simms v. Estate of Blake, 615 S.W.3d 14, 2021 Ky. LEXIS 10 ( Ky. 2021 ); Willett v. Estate of Vessells, 629 S.W.3d 20, 2021 Ky. App. LEXIS 84 (Ky. Ct. App. 2021).

Research References and Practice Aids

Cross-References.

Claims against decedent’s estates, KRS Chapter 396.

Descent and distribution, General Assembly not to pass special acts on, Const., § 59, Eighth.

Descent in case of simultaneous deaths, KRS 397.1002 , 397.1003 .

Distributee, representative may recover amount of overpayment to, KRS 396.165 .

Divorce or adultery bars claim of spouses to property of each other, KRS 392.090 .

Dower and curtesy, KRS ch. 392.

Dower, estate willed in lieu of to revert to heirs of testator, KRS 392.120 .

Emblements pass with land, when, KRS 395.350 .

Estate may be distributed six months after qualification of representative, KRS 395.190 .

Failing or lapsed devise to pass as in cases of intestacy, KRS 394.500 .

Heirs hold title when patent or deed is issued to dead person, KRS 382.060 .

Heirs of loser at gambling may recover from winner, KRS 372.020 .

Inheritance and estate taxes, KRS ch. 140.

Inheritance tax, representative to pay before he delivers property to heirs, KRS 140.220 .

Killing person from whom inheritance expected, KRS 381.280 .

Nonresident, personal estate of to be distributed according to laws of residence, KRS 395.260 .

Suicide does not affect descent and distribution, Const., § 21.

Surviving spouse may renounce will, KRS 392.080 .

Waste committed during ancestor’s lifetime, heir may sue for, KRS 381.370 .

Wills, KRS ch. 394.

Will, validity of not affected by subsequent incompetency of witness, KRS 394.210 .

Kentucky Law Journal.

Noyes, The Descent and Distribution of Real and Personal Property in Kentucky, 34 Ky. L.J. 268 (1946).

Brown, The Settlement of a Decedent’s Estate, 42 Ky. L.J. 644 (1954).

Matthews, Dower, Principal and Income, Perpetuities, and Intestate Succession, 45 Ky. L.J. 111 (1956).

Skaggs and Erwin, The Horizontal Property Law of Kentucky, 51 Ky. L.J. 46 (1962).

Germain, Remedies, 63 Ky. L.J. 777 (1974-1975).

Comments, Pendleton v. Pendleton: An Equal Right of Inheritance for the Illegitimate?, 65 Ky. L.J. 712 (1976-77).

Comments, The Uniform Disposition of Community Property Rights at Death Act, 65 Ky. L.J. 541 (1976-77).

Kentucky Law Survey, Bratt, Property, 73 Ky. L.J. 459 (1984-85).

Bratt, Kentucky’s Doctrine of Advancements: A Time for Reform, 75 Ky. L.J. 341 (1986-87).

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Northern Kentucky Law Review.

Comment, Illegitimate Intestate Succession Rights in Kentucky: “Why Brands They Us With Base: With Baseness? Bastardy? Base, Base?” 3 N. Ky. L. Rev. 196 (1976).

Schneider, A Kentucky Study of Will Provisions: Implications for Intestate Succession Law, 13 N. Ky. L. Rev. 409 (1987).

Schneider, Recommendations for Improving Kentucky’s Inheritance Laws, 22 N. Ky. L. Rev. 317 (1995).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Affidavit of Value, Form 233.22.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Dower and Curtesy Exemption, § 254.00.

391.020. Descent of real estate acquired from parent.

  1. When a person dies intestate and without issue, owning real estate of inheritance which is the gift of either of his parents, the parent who made the gift, if living, shall inherit the whole of such estate.
  2. If a person under the age of eighteen (18) dies without issue, having the title to real estate derived by gift, devise or descent from one of his parents, the whole shall descend to that parent and that parent’s kindred, and if there is none, then in like manner to the other parent and his kindred. The kindred of one parent shall not be so excluded by the kindred of the other parent, if the latter is more remote than the grandfather, grandmother, uncles and aunts of the intestate and their descendants.

History. 1400, 1401: amend. Acts 1968, ch. 100, § 9.

NOTES TO DECISIONS

1.Purpose.

The purpose of this statute is to prevent the estate of a parent from being distributed to strangers to his blood where any of his children die in infancy and without issue. Lanferman v. Vanzile, 150 Ky. 751 , 150 S.W. 1008, 1912 Ky. LEXIS 988 ( Ky. 1912 ).

2.Application.

This statute only applies to the case in which the real estate comes to the infant by gift, devise, or descent and not to the case in which the parent pays the purchase price and has the conveyance made to the child. Guier v. Bridges, 114 Ky. 148 , 70 S.W. 288, 24 Ky. L. Rptr. 945 , 1902 Ky. LEXIS 141 ( Ky. 1902 ). See Hagan v. Clemons, 78 S.W. 899, 25 Ky. L. Rptr. 1776 (1904).

It is only where the party dies while an infant and without issue that subsection (2) of this section is applicable. Bertram v. Witherspoon's Adm'r, 138 Ky. 116 , 127 S.W. 533, 1910 Ky. LEXIS 47 ( Ky. 1910 ). See Vanover v. Steele, 173 Ky. 114 , 190 S.W. 667, 1917 Ky. LEXIS 414 ( Ky. 1917 ).

This section applies only where the title to the real estate owned by an infant comes to him from one of his parents. Huffman v. Hatcher, 178 Ky. 8 , 198 S.W. 236, 1917 Ky. LEXIS 680 ( Ky. 1917 ) ( Ky. 1917 ).

3.Issue.

The word “issue” as used in the part of this section referring to dying “without issue” includes an illegitimate child of the mother. Cherry v. Mitchell, 108 Ky. 1 , 55 S.W. 689, 21 Ky. L. Rptr. 1547 , 1900 Ky. LEXIS 1 ( Ky. 1 900 ).

4.Parent.

The word “parent” as used in this section means a legal parent. Blankenship v. Ross, 95 Ky. 306 , 25 S.W. 268, 15 Ky. L. Rptr. 708 , 1894 Ky. LEXIS 24 ( Ky. 1894 ).

5.Descendant.

A child of a deceased aunt is a “descendant” under this section and will inherit the share that her mother would have inherited had the mother survived the deceased nephew. Carnes v. Bingham, 134 Ky. 96 , 119 S.W. 738, 1909 Ky. LEXIS 354 ( Ky. 1909 ).

6.Gift from Parent.

Where a woman, prior to marriage, conveyed her land to her aunt who in turn reconveyed the land to her for life with remainder to her children and she died survived by an infant child, the child “derived” the land by gift from its mother under this statute. Connell v. Harper, 202 Ky. 406 , 259 S.W. 1017, 1924 Ky. LEXIS 727 ( Ky. 1924 ).

When a father conveys land to his son for a nominal consideration it is a gift under this section and the father inherits the land upon the death of the son intestate and without issue to the exclusion of the surviving mother. Yaden v. Moore, 233 Ky. 46 , 24 S.W.2d 927, 1930 Ky. LEXIS 492 ( Ky. 1930 ).

7.Descent of Real Estate.

Where a minor dies without issue after receiving realty from his deceased father and the father had six other children, two of whom were full brothers of the decedent and four were by a prior marriage, the descent is determined in accordance with the relationship of the kindred to the father rather than to the deceased son. White v. Hogge, 291 S.W.2d 22, 1956 Ky. LEXIS 361 ( Ky. 1956 ).

8.— Surviving Parent.

The surviving parent inherits the whole of real estate which he or she has given to a child who dies without issue. Bagby v. Bagby, 151 Ky. 558 , 152 S.W. 537, 1913 Ky. LEXIS 510 ( Ky. 1913 ).

9.— Kin of Parent.

Where an infant inherits property from his mother and dies, while an infant and without issue, the whole of the inherited estate passes to the brothers and sisters of the deceased mother to the exclusion of the surviving father of the infant. Holmes v. Lane, 136 Ky. 21 , 123 S.W. 318, 1909 Ky. LEXIS 453 ( Ky. 1909 ).

Where the mother devised property to her husband and he predeceased her survived by a son, the son took under the mother’s will as provided by KRS 394.400 , and upon his death while an infant and without issue his mother’s brothers and sisters inherited to the exclusion of his paternal grandparents. Banks v. Cornelison, 159 Ky. 793 , 169 S.W. 502, 1914 Ky. LEXIS 888 ( Ky. 1914 ).

Where land is inherited from the father and the infant dies survived only by his maternal grandparents and sons and daughters of his aunts and uncles on his paternal side, the sons and daughters of his uncles and aunts on his paternal side inherit to the exclusion of the maternal grandparents. Pulliam v. Parris, 187 Ky. 844 , 220 S.W. 1075, 1920 Ky. LEXIS 218 ( Ky. 1920 ).

Where an infant inherits land from his father and dies, during infancy and without issue, survived by his paternal grandmother and mother, the grandmother inherits, to the exclusion of the mother, and her sons and daughters inherit the land from her. Carr v. Hart, 232 Ky. 37 , 22 S.W.2d 432, 1929 Ky. LEXIS 385 ( Ky. 1929 ).

Where son and daughter each inherited a vested remainder interest in realty from their father, the daughter’s interest was inherited by her brother upon her death in infancy without issue; upon the son’s death in infancy without issue the interest he had inherited from his sister would descend to his mother and the interest he had inherited from his father would descend to his father’s kindred. Conlee v. Conlee, 300 Ky. 685 , 190 S.W.2d 43, 1945 Ky. LEXIS 634 ( Ky. 1945 ).

10.— Half-blood Kin.

Where an infant inherits land from his mother and dies while an infant and without issue, the whole estate so inherited descends to the infant’s maternal uncles and aunts, as his next of kindred, to the exclusion of half-brothers of the decedent. Gaddie v. Hogan, 181 Ky. 714 , 205 S.W. 781, 1918 Ky. LEXIS 598 ( Ky. 1918 ). See Carnes v. Bingham, 134 Ky. 96 , 119 S.W. 738, 1909 Ky. LEXIS 354 ( Ky. 1909 ).

11.— Adopted Child.

If an adopted child inherits property from his adoptive parents and dies an infant and without issue, the property so inherited passes to the kindred of the adoptive parents to the exclusion of the natural mother of the adopted child. Lanferman v. Vanzile, 150 Ky. 751 , 150 S.W. 1008, 1912 Ky. LEXIS 988 ( Ky. 1912 ).

12.— Posthumous Child.

Where testator devised his land to “my children,” a posthumous child took under the will and not from her brothers and sisters by way of contribution as a pretermitted child; therefore, on death of such child without issue, her interest in the land passed to her father’s kindred and not to her surviving mother. Lamar v. Crosby, 162 Ky. 320 , 172 S.W. 693, 1915 Ky. LEXIS 82 ( Ky. 1915 ).

13.Dower and Curtesy.

Husband of infant who died without issue was entitled to curtesy as against kindred of parent from whom infant had derived real estate. Lamar v. Crosby, 162 Ky. 320 , 172 S.W. 693, 1915 Ky. LEXIS 82 ( Ky. 1915 ).

Where an infant inherits land from his father, the surviving wife of the infant is entitled to dower. McCoy v. Ferguson, 249 Ky. 334 , 60 S.W.2d 931, 1933 Ky. LEXIS 518 ( Ky. 1933 ).

The ancestral property statute (this section) does not supersede, limit, or override the rights of dower or curtesy by a surviving spouse under KRS 392.020 . Francis v. Justice, 687 S.W.2d 868, 1985 Ky. App. LEXIS 557 (Ky. Ct. App. 1985).

14.Proceeds from Real Estate.

Where an infant receives land by devise from a parent and the land is sold pursuant to a court order, the fund to be reinvested, and the infant dies without issue, the fund realized from the sale of the land represents real estate and is covered by this section. Weisiger v. McDonald, 116 Ky. 862 , 76 S.W. 1080, 81 S.W. 687, 25 Ky. L. Rptr. 1053 , 26 Ky. L. Rptr. 416 , 1903 Ky. LEXIS 251 ( Ky. 1903 ), modified, 116 Ky. 872 , 81 S.W. 687 ( Ky. 1904 ).

Where an infant’s land has been sold under a condemnation proceeding and the infant dies while an infant and without issue the fund realized from the sale passes under this section as real estate. McCoy v. Ferguson, 249 Ky. 334 , 60 S.W.2d 931, 1933 Ky. LEXIS 518 ( Ky. 1933 ).

Cited:

Weisiger v. McDonald, 116 Ky. 862 , 25 Ky. L. Rptr. 1053 , 26 Ky. L. Rptr. 416 , 76 S.W. 1080, 81 S.W. 687, 1903 Ky. LEXIS 251 ( Ky. 1903 ); Layne v. Clark, 152 Ky. 310 , 153 S.W. 437, 1913 Ky. LEXIS 656 ( Ky. 1913 ); Vanover v. Steele, 173 Ky. 114 , 190 S.W. 667, 1917 Ky. LEXIS 414 ( Ky. 1917 ); McDowell v. Kent, 175 Ky. 445 , 194 S.W. 374, 1917 Ky. LEXIS 335 ( Ky. 1917 ); Connell v. Harper, 202 Ky. 406 , 259 S.W. 1017, 1924 Ky. LEXIS 727 ( Ky. 1924 ); Bates v. Hanks, 262 Ky. 556 , 90 S.W.2d 743, 1935 Ky. LEXIS 793 ( Ky. 1935 ); Ragland v. Shrout, 476 S.W.2d 820, 1972 Ky. LEXIS 391 ( Ky. 1972 ).

Research References and Practice Aids

Kentucky Law Journal.

Ham, Kentucky Adopts the Uniform Partnership Act, Partnership Property, 43 Ky. L.J. 5 (1954).

Bratt, Family Protection Under Kentucky’s Inheritance Laws: Is the Family Really Protected? 76 Ky. L.J. 387 (1987-88).

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Northern Kentucky Law Review.

Schneider, A Kentucky Study of Will Provisions: Implications for Intestate Succession Law, 13 N. Ky. L. Rev. 409 (1987).

Schneider, Recommendations for Improving Kentucky’s Inheritance Laws, 22 N. Ky. L. Rev. 317 (1995).

391.030. Descent of personal property — Exemption for surviving spouse and children — Withdrawal of money from bank by surviving spouse.

  1. Except as otherwise provided in this chapter, where any person dies intestate as to his or her personal estate, or any part thereof, the surplus, after payment of funeral expenses, charges of administration, and debts, shall pass and be distributed among the same persons, and in the proportions, to whom and in which real estate is directed to descend, except as follows:
    1. The personal estate of an infant shall be distributed as if he or she had died after full age;
    2. An alien may be distributee as though he or she were a citizen; and
    3. Personal property or money on hand or in a bank or other depository to the amount of thirty thousand dollars ($30,000) shall be exempt from distribution and sale and shall be set apart by the District Court having jurisdiction over the estate on application to the surviving spouse, or, if there is no surviving spouse, to the surviving children.
  2. The surviving spouse may, at any time before the property or money is set apart by the court, procure on petition from the Judge of the District Court having jurisdiction over the estate, an order authorizing the surviving spouse to withdraw from any bank or other depository not exceeding two thousand five hundred dollars ($2,500) belonging to the estate. Upon presentation of the order, the bank or depository shall permit the surviving spouse to withdraw the sum and shall lodge the order, endorsing thereon the amount withdrawn, with the circuit clerk who shall retain it in the clerk’s files to be considered in connection with further proceedings in the estate and the withdrawal shall be treated as a charge against the property of the estate exempt from distribution.
  3. In the application for the setting apart of property or money under subsection (1) of this section, the surviving spouse or, if there is no surviving spouse, the surviving children may make their selection out of the personal property of the estate to the extent that the value of the property selected does not exceed the amount of thirty thousand dollars ($30,000).
  4. Where any person dies testate:
    1. Personal property or money on hand or in a bank or other depository to the amount of thirty thousand dollars ($30,000) shall be exempt from distribution and sale and shall be set apart by the District Court having jurisdiction over the estate on application of the surviving spouse;
    2. If there is no surviving spouse, personal property or money on hand or in a bank or other depository bequeathed to surviving children to the amount of thirty thousand dollars ($30,000) shall be exempt from distribution and sale and shall be set apart by the District Court having jurisdiction over the estate on application by the surviving children;
    3. The exemption of the surviving spouse under paragraph (a) of this subsection is not conditioned upon the surviving spouse renouncing the will, and, in the event of renunciation, the surviving spouse shall be entitled to the exemption in addition and prior to determining the statutory share of the surviving spouse under KRS 392.080 ; and
    4. Subsection (3) of this section shall apply with respect to the surviving spouse provided that the surviving spouse shall first select from among the personal property of the residuary estate, then to the extent necessary from among the money on hand or on deposit specifically bequeathed under the will, and then to the extent necessary from among any other personal property specifically bequeathed under the will. Where the selection of the surviving spouse is made up, in whole or in part, from personal property or money on hand or on deposit specifically bequeathed to a beneficiary, such beneficiary shall have a right of contribution on the principles of KRS 394.420 to 394.490 unless the will otherwise directs, or it is necessarily to be inferred therefrom that the testator intended the same to fall on such beneficiary except that there shall be no right of contribution from the surviving spouse.

History. 1403: amend. Acts 1946, ch. 163; 1966, ch. 255, § 266; 1968, ch. 144, § 1; 1970, ch. 222, § 2; 1972, ch. 168, § 6; 1974, ch. 299, § 2; 1974, ch. 328, § 3; 1976 (Ex. Sess.), ch. 10, § 1; 1976 (Ex. Sess.), ch. 14, § 351, effective January 2, 1978; 1980, ch. 259, § 8, effective July 15, 1980; 1982, ch. 51, § 1, effective July 15, 1982; 1982, ch. 277, § 7, effective July 15, 1982; 1988, ch. 27, § 1, effective July 15, 1988; 1992, ch. 129, § 1, effective July 14, 1992; 2002, ch. 362, § 1, effective July 15, 2002; 2010, ch. 21, § 9, effective July 15, 2010; 2020 ch. 24, § 1, effective July 15, 2020.

NOTES TO DECISIONS

1.Purpose.

The primary purpose of this section is to direct the manner in which, and to ask whom, the personal estate of an intestate shall descend in the event there is a surplus. Blades v. Blades' Adm'r, 289 Ky. 556 , 159 S.W.2d 407, 1942 Ky. LEXIS 597 ( Ky. 1942 ).

2.Surplus.

The word “surplus” applies to that part of the estate, or assets, remaining in the hands of the administrator after the payment or allotment of some prior or superior claim. Blades v. Blades' Adm'r, 289 Ky. 556 , 159 S.W.2d 407, 1942 Ky. LEXIS 597 ( Ky. 1942 ).

3.Infant Children.

“Infant children” (now children) as referred to in this section means the children of the intestate and not his stepchildren. Howland's Adm'r v. Harr, 123 Ky. 732 , 97 S.W. 358, 30 Ky. L. Rptr. 53 , 1906 Ky. LEXIS 204 ( Ky. 1906 ) (Decision prior to 1982 amendment).

4.Personal Property.

This section and KRS 392.020 do not conflict. The surplus personalty provided for in KRS 392.020 is the personalty remaining after the debts, funeral expenses, and widow’s exemption have been deducted from the gross personalty possessed by decedent at the time of his death. Talbott's Ex'r v. Goetz, 286 Ky. 504 , 151 S.W.2d 369, 1941 Ky. LEXIS 296 ( Ky. 1941 ).

Federal law governs the rights of co-owners of United States savings bonds and the state law as to intestate succession must yield thereto. Marcum v. Marcum, 377 S.W.2d 62, 1964 Ky. LEXIS 476 ( Ky. 1964 ).

5.— Wrongful Death Damages.

Damages recovered for wrongful death become part of the estate of the decedent provided that there are living none of the persons named in KRS 411.130 . Sturges v. Sturges, 126 Ky. 80 , 102 S.W. 884, 31 Ky. L. Rptr. 537 , 1907 Ky. LEXIS 27 ( Ky. 1907 ).

6.— Property Not Included.

This section is applicable only to property which the intestate owned and of which he died seized, and is not applicable to a trust fund set up for the use and benefit of the husband during his life with remainder to his heirs according to the statutes of descent. Vandyke v. Vandyke, 223 Ky. 49 , 2 S.W.2d 1057, 1928 Ky. LEXIS 280 ( Ky. 1928 ).

This statute is not applicable where the wife is the beneficiary of an insurance policy on the life of her husband, as these funds are not part of the estate of her deceased husband. Thacker v. Cook, 236 Ky. 159 , 32 S.W.2d 738, 1930 Ky. LEXIS 701 ( Ky. 1930 ).

7.— Property Subject to Debts.

This section is limited by KRS 404.040 to the extent that the surviving husband is liable for “necessaries,” including funeral expenses, furnished to the deceased wife. Palmer v. Turner, 241 Ky. 322 , 43 S.W.2d 1017, 1931 Ky. LEXIS 81 ( Ky. 1931 ).

The proceeds of a United States government converted insurance policy paid to the estate of the insured is subject to the insured soldier’s debts under this section. First Nat'l Bank v. Cann's Ex'x, 247 Ky. 618 , 57 S.W.2d 461, 1932 Ky. LEXIS 879 ( Ky. 1932 ).

8.Exempt Property.

The failure of the widow to claim her exemption in her first settlement with the administrator is not a bar to her recovering it where there is money in the estate sufficient to pay it. Rau v. Rowe, 188 Ky. 524 , 222 S.W. 1070, 1920 Ky. LEXIS 313 ( Ky. 1920 ).

A widow and infant children will be given $750 of the surplus personal property for their immediate needs and this amount is excluded from the claims of the deceased husband’s creditors and heirs. Wyly v. Kallenbach, 256 Ky. 391 , 76 S.W.2d 34, 1934 Ky. LEXIS 411 ( Ky. 1934 ) (Decision prior to 1946 amendment).

When personalty is worth less than $750, widow is entitled to all of it. Fitzpatrick's Adm'r v. Fitzpatrick, 288 Ky. 53 , 155 S.W.2d 463, 1941 Ky. LEXIS 48 ( Ky. 1941 ) (Decision prior to 1946 amendment).

In action to settle estate, statute providing for a widow’s exemption applies not only against the rights of heirs, but also against funeral expenses, costs of administration and debts. Blades v. Blades' Adm'r, 289 Ky. 556 , 159 S.W.2d 407, 1942 Ky. LEXIS 597 ( Ky. 1942 ).

It was not prejudicial for the county court to allow a surviving widow an allowance of $500 on application made after the appointment of an administrator, as she was entitled to have $1,500 (now $7,500) set aside for her. Mullins v. Mullins, 307 Ky. 748 , 212 S.W.2d 272, 1948 Ky. LEXIS 819 ( Ky. 1948 ).

Where the antenuptial agreement was declared not a valid and enforceable agreement, the spouse of the decedent was entitled to the statutory spouse’s exemption provided for in subdivision (1)(c) of this section. Luck v. Luck, 711 S.W.2d 860, 1986 Ky. App. LEXIS 1155 (Ky. Ct. App. 1986).

9.— Property Not Subject to.

The widow is not entitled to an allowance out of property of the deceased husband which was attached during his lifetime by his creditors if the property so attached was not exempt from execution. Blake v. Durrell, 103 Ky. 600 , 45 S.W. 883, 20 Ky. L. Rptr. 270 , 1898 Ky. LEXIS 102 ( Ky. 1898 ).

Courts are without power to subject real estate belonging to decedent’s estate to payment of a deficiency in exemptions granted widow by statute. Kilburn v. Holliday, 295 Ky. 843 , 175 S.W.2d 516, 1943 Ky. LEXIS 347 ( Ky. 1943 ).

The workers’ compensation benefit paid to the child of the deceased could not be used to offset the statutory exemption that entitles the spouse or child to a certain amount of the decedent’s property, because insurance policy benefits payable directly to a beneficiary do not become part of the decedent’s estate. Crittendon v. Saxon, 32 S.W.3d 500, 1999 Ky. App. LEXIS 140 (Ky. Ct. App. 1999).

10.— Payment of Debts.

The property set aside for the widow cannot be subjected to payment of the debts of the decedent. Thompson v. Thompson, 117 Ky. 526 , 78 S.W. 418, 25 Ky. L. Rptr. 1626 , 1904 Ky. LEXIS 212 ( Ky. 1904 ).

The widow is permitted to recover from the estate the value of personal property of her deceased husband which should have been set aside to her as exempt under this section and which she has used to pay debts of the estate. Kilburn v. Holliday, 295 Ky. 843 , 175 S.W.2d 516, 1943 Ky. LEXIS 347 ( Ky. 1943 ).

11.— Division of Exempt Property.

Upon the death of one of the infants (now just children), for whose use and benefit money or property has been set aside, the survivors are entitled to the whole property or fund so set aside. Wilson v. Parson's Adm'r, 106 Ky. 385 , 50 S.W. 684, 20 Ky. L. Rptr. 1931 , 1899 Ky. LEXIS 55 ( Ky. 1899 ) (Decision prior to 1982 amendment).

Where the deceased was survived by a wife and six infant (now just children) children and the wife was confined in the penitentiary and could not live with the infant children, she was entitled to one-seventh of the exempt property and the remainder should go to the surviving infant children. Eversole v. Eversole, 169 Ky. 793 , 185 S.W. 487, 1916 Ky. LEXIS 779 ( Ky. 1916 ) ( Ky. 1916 ) (Decision prior to 1982 amendment).

Where it is impossible for any reason for the widow and infant (now just children) children to maintain a home and enjoy the exempt property, the property should be divided between them, if the property cannot be divided, then it should be sold and the proceeds equally divided between the widow and infant children. Landrum v. Landrum, 187 Ky. 196 , 218 S.W. 717, 1920 Ky. LEXIS 99 ( Ky. 1920 ) (Decision prior to 1982 amendment).

Where widow and children are entitled to an amount of exempt property the widow is entitled to control and custody of the property and it will not be divided between her and the children as long as she provides a home for the children though they do not live with her through no fault of her own. Crain v. West, 191 Ky. 1 , 229 S.W. 51, 1921 Ky. LEXIS 260 ( Ky. 1 921 ).

Where the deceased was survived by a widow and infant daughter, who was a child of the deceased by a former marriage, and who never lived with her father and stepmother, and there was ill feeling between the widow and the stepchild, and both had married since the death of the deceased, the exempt property should be divided equally between the widow and stepchild. Wheeldon Adm'r v. Barrett's Guardian, 253 Ky. 737 , 70 S.W.2d 11, 1934 Ky. LEXIS 721 ( Ky. 1934 ) (Decision prior to 1982 amendment).

The exempt property should be divided between the widow and infant children where the widow maintained no home but lived with her parents in a small home occupied by four other persons, and the infants were her stepchildren and never lived with her and her deceased husband but with their grandparents. Allen v. Allen's Adm'r, 262 Ky. 762 , 91 S.W.2d 55, 1936 Ky. LEXIS 98 ( Ky. 1936 ).

Children who refuse to live with their widowed stepmother who maintains a home to which they have access are not entitled to a division of the exempt property. Berger v. Berger, 264 Ky. 229 , 94 S.W.2d 620, 1936 Ky. LEXIS 302 ( Ky. 1936 ).

12.— Duty of Administrator.

The refusal of the administrator to sell the personal property of the estate and pay the surviving widow the allowance made under this section constitutes a conversion on the part of the administrator. He must sell sufficient of the estate to pay this allowance. Meyers' Adm'r v. Meyers, 244 Ky. 248 , 50 S.W.2d 81, 1932 Ky. LEXIS 392 ( Ky. 1932 ).

13.— Separate Agreements.

The widow may relinquish her rights under this section by an antenuptial contract but the rights of surviving infant (now just children) children are not thereby affected and they are entitled to have the exempt property set aside for their use and benefit. Brown v. Brown's Adm'r, 80 S.W. 470, 25 Ky. L. Rptr. 2264 , 1904 Ky. App. LEXIS 9 (Kan. Ct. App. 1904) (Decision prior to 1982 amendment).

Widow who entered into contract with the surviving children to sell “all the real and personal property” of the deceased husband and father and divide the proceeds equally between them thereby relinquished her right to the exempt property provided for in this section. Teater v. Teater, 221 Ky. 732 , 299 S.W. 729, 1927 Ky. LEXIS 816 ( Ky. 1927 ).

Where, pursuant to a good faith compromise, the son of the testator paid his sister a sum substantially in excess of the amount bequeathed her by the will, he furnished her adequate consideration for her agreement to relinquish all her claim to the estate. Murphy v. Henry, 311 Ky. 799 , 225 S.W.2d 662, 1949 Ky. LEXIS 1247 ( Ky. 1949 ).

Where widow entered into an agreement giving up certain rights in return for household goods, furniture, farm equipment and a life estate in realty it was proper to award her the widow’s exemption where there is no evidence that she agreed to relinquish it. Justice v. Justice, 237 S.W.2d 866, 1951 Ky. LEXIS 788 ( Ky. 1951 ).

A wife may by separation agreement relinquish her right to the statutory exemption, but her intention to relinquish must be clearly shown although no particular words are necessary. King v. King, 274 S.W.2d 656, 1954 Ky. LEXIS 1235 ( Ky. 1954 ).

Where husband and wife enter an agreement in contemplation of separation by which each is to transfer certain properties to the other and the wife relinquishes all dower and homestead interests in the husband’s realty and the transfers are executed in accordance with the agreement and then the parties are reconciled the rule that a separation is nullified upon reconciliation is not applicable because the agreement was fully executed and the court must look to the intent of the parties in determining the effect of the agreement at the death of the husband on the widow’s exemption. King v. King, 274 S.W.2d 656, 1954 Ky. LEXIS 1235 ( Ky. 1954 ).

14.— Forfeiture of Rights.

The wife who voluntarily leaves her husband and lives in adultery forfeits her right under the provisions of this section. Bond v. Bond's Adm'r, 150 Ky. 389 , 150 S.W. 363, 1912 Ky. LEXIS 890 ( Ky. 1912 ).

15.— Priority of Claims.

The widow’s exemption allowed by this section is prior and superior to the claim of an undertaker, where the deceased’s personal estate is insufficient to discharge both the claim and the exemption. Blades v. Blades' Adm'r, 289 Ky. 556 , 159 S.W.2d 407, 1942 Ky. LEXIS 597 ( Ky. 1942 ).

The widow’s exemption is not entitled to preference over a mortgage. International Harvester Co. v. Dyer's Adm'r, 297 Ky. 55 , 178 S.W.2d 966, 1944 Ky. LEXIS 669 ( Ky. 1944 ).

A widow’s exemption is inferior to a labor lien. International Harvester Co. v. Dyer's Adm'r, 297 Ky. 55 , 178 S.W.2d 966, 1944 Ky. LEXIS 669 ( Ky. 1944 ).

A widow’s exemption provided by this section is superior to an undertaker’s claim. International Harvester Co. v. Dyer's Adm'r, 297 Ky. 55 , 178 S.W.2d 966, 1944 Ky. LEXIS 669 ( Ky. 1944 ).

The fee of the attorney for the administrator and other costs of administration are superior to the widow’s claim for funeral expenses and distributable share, but is inferior to the widow’s exemption under subsection (1) (c) of this section. Bryant's Adm'r v. Bryant, 269 S.W.2d 219, 1954 Ky. LEXIS 968 ( Ky. 1954 ).

The widow’s exemption is inferior to an unrecorded chattel mortgage. Graham v. Graham's Adm'x, 306 S.W.2d 831, 1957 Ky. LEXIS 56 ( Ky. 1957 ).

16.— Vests at Death.

Widow’s right to exempt property vests at the very instant of her husband’s death and if she dies before it is set apart her representative may recover such property or its value. Mallory's Adm'r v. Mallory's Adm'r, 92 Ky. 316 , 17 S.W. 737, 13 Ky. L. Rptr. 579 , 1891 Ky. LEXIS 160 ( Ky. 1891 ) (decided under prior law).

The right to the exempt property vests in the widow and infant children upon the death of the husband and father, and is not forfeited by their removal from Kentucky. O'Hara v. O'Hara's Adm'r, 182 Ky. 260 , 206 S.W. 462, 1918 Ky. LEXIS 353 ( Ky. 1918 ).

The right to the exempt property vests in the widow upon the death of her husband, and if she dies before it is set apart for her and her representative may recover the property or its value. Frye's Adm'r v. Frye's Adm'x, 258 Ky. 554 , 80 S.W.2d 584, 1935 Ky. LEXIS 203 ( Ky. 1935 ).

Upon the death of a person intestate the property specifically exempted by statute from distribution and sale at once ceases to be a part of his estate, vests absolutely in the widow or distributees, as the case may be, and it is the duty of the administrator to see that the exempted articles are set apart to them. Blades v. Blades' Adm'r, 289 Ky. 556 , 159 S.W.2d 407, 1942 Ky. LEXIS 597 ( Ky. 1942 ).

17.Deceased Killed by Spouse.

Where husband killed wife, to the extent wife’s will named a residuary legatee other than her husband, proceeds of insurance policies of which husband was the beneficiary were payable under KRS 381.280 to the executor of the wife’s estate for distribution to such legatee subject to payment of debts and other claims and charges against the estate; however, if the husband were the only named legatee the proceeds would pass as intestate property to wife’s heirs and as such would also be subject to any claims and charges against the estate. First Kentucky Trust Co. v. United States, 737 F.2d 557, 1984 U.S. App. LEXIS 21268 (6th Cir. Ky. 1984 ).

18.Spouse’s Will Renounced.

A surviving spouse is not required to renounce the decedent’s will in order to assert a claim for the exemption provided for by this statute. Sanders v. Pierce, 979 S.W.2d 457, 1998 Ky. App. LEXIS 54 (Ky. Ct. App. 1998).

Cited:

McDonald v. McDonald, 96 Ky. 209 , 16 Ky. L. Rptr. 412 , 28 S.W. 482, 1894 Ky. LEXIS 114 ( Ky. 1894 ); Oster’s Ex’r v. Ohlman, 187 Ky. 341 , 219 S.W. 187, 1920 Ky. LEXIS 125 ( Ky. 1920 ); Stockyards Bank of Louisville v. Hudson’s Adm’x, 227 Ky. 476 , 13 S.W.2d 499, 1929 Ky. LEXIS 901 ( Ky. 1929 ); Mason’s Adm’r v. Mason’s Guardian, 239 Ky. 208 , 39 S.W.2d 211, 1931 Ky. LEXIS 744 ( Ky. 1931 ); Broom v. Klein, 309 Ky. 224 , 217 S.W.2d 206, 1949 Ky. LEXIS 660 ( Ky. 1949 ); Bates v. Wilson, 313 Ky. 572 , 232 S.W.2d 837, 1950 Ky. LEXIS 906 ( Ky. 1950 ); Russell v. Johnson, 252 S.W.2d 416, 1952 Ky. LEXIS 990 ( Ky. 1952 ); See v. See, 293 S.W.2d 225, 1956 Ky. LEXIS 58 ( Ky. 1956 ); Payne v. Chenault, 343 S.W.2d 129, 1960 Ky. LEXIS 10 2 ( Ky. 1960 ); Totten v. Parker, 428 S.W.2d 231, 1967 Ky. LEXIS 523 ( Ky. 1967 ); Herren v. Cochran, 697 S.W.2d 149, 1985 Ky. App. LEXIS 589 (Ky. Ct. App. 1985); Crain v. Dean, 741 S.W.2d 655, 1987 Ky. LEXIS 256 ( Ky. 1987 ); Simms v. Estate of Blake, 615 S.W.3d 14, 2021 Ky. LEXIS 10 ( Ky. 2021 ); Willett v. Estate of Vessells, 629 S.W.3d 20, 2021 Ky. App. LEXIS 84 (Ky. Ct. App. 2021).

Opinions of Attorney General.

The words “or any part thereof,” in subsection (1) upon a common sense reading and by plain meaning denote that a surviving widow or spouse can take a statutory share where the testator dies partially intestate. OAG 78-135 .

Research References and Practice Aids

Cross-References.

Administration of estates, dispensing with by agreement, KRS 395.470 .

Adultery or divorce bars claim of spouses to property of each other, KRS 392.090 .

Dower, estate willed in lieu of to revert to heirs of testator, KRS 392.120 .

Emblements, assets of representative when severed prior to December 31 and intestate dies in March or later, KRS 395.350 .

Estate for life of another to go to representative upon death of tenant, KRS 395.340 .

Simultaneous death act, KRS Chapter 397.

Wrongful death, distribution of sum recovered in action for, KRS 411.130 .

Kentucky Bench & Bar.

Hargrove, 2010 Changes to the Kentucky Trust & Estate Practice, Vol. 74, No. 5, September 2010, Ky. Bench & Bar 12.

Kentucky Law Journal.

Germain, Remedies, 63 Ky. L.J. 777 (1974-1975).

Kentucky Law Survey, Catron, Wills, Probate and Real Property Law, 71 Ky. L.J. 333 (1982-83).

Kentucky Law Survey, Whiteside, Taxation, 71 Ky. L.J. 479 (1982-83).

Bratt, Kentucky’s Doctrine of Advancements: A Time for Reform, 75 Ky. L.J. 341 (1986-87).

Bratt, Family Protection Under Kentucky’s Inheritance Laws: Is the Family Really Protected? 76 Ky. L.J. 387 (1987-88).

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Northern Kentucky Law Review.

Schneider, A Kentucky Study of Will Provisions: Implications for Intestate Succession Law, 13 N. Ky. L. Rev. 409 (1987).

Calvert, Probate Law, 21 N. Ky. L. Rev. 367 (1994).

Schneider, Recommendations for Improving Kentucky’s Inheritance Laws, 22 N. Ky. L. Rev. 317 (1995).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Application and Order for Surviving Spouse’s Exemption, Form 230.11.

Caldwell’s Kentucky Form Book, 5th Ed., Petition to Exempt Property, Form 254.03.

Caldwell’s Kentucky Form Book, 5th Ed., Petition to Withdraw Funds, Form 254.01.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Dower and Curtesy Exemption, § 254.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Probate Procedures Dispensing with Administration, § 232.00.

Petrilli, Kentucky Family Law, Illegitimacy and Paternity Proceedings, § 31.1.

Petrilli, Kentucky Family Law, Personal Rights and Privileges Resulting from Marriage, § 12.6.

Petrilli, Kentucky Family Law, Separation Agreements, § 19.9.

Petrilli, Kentucky Family Law, Status of Wife, § 11.2.

Petrilli, Kentucky Family Law, Support of the Family, § 16.7.

391.033. Limitation on right to estate if parent has abandoned care and maintenance of child.

  1. A parent who has willfully abandoned the care and maintenance of his or her child shall not have a right to intestate succession in any part of the estate and shall not have a right to administer the estate of the child, unless:
    1. The abandoning parent had resumed the care and maintenance at least one (1) year prior to the death of the child and had continued the care and maintenance until the child’s death; or
    2. The parent had been deprived of the custody of his or her child under an order of a court of competent jurisdiction and the parent had substantially complied with all orders of the court requiring contribution to the support of the child.
  2. Any part of a decedent child’s estate prevented from passing to a parent, under the provisions of subsection (1) of this section, shall pass through intestate succession as if that parent has failed to survive the decedent child.
  3. This section may be cited as Mandy Jo’s Law.

History. Enact. Acts 2000, ch. 414, §§ 1, 3, effective July 14, 2000.

NOTES TO DECISIONS

1.Evidence of Abandonment.

Where a father was behind in child support, was questionable in visitation, and lacked involvement in a child’s life, the father willfully abandoned the child and was precluded from sharing in a wrongful death settlement by Mandy Jo’s Law, KRS 411.137 , 391.033 . Kimbler v. Arms, 102 S.W.3d 517, 2003 Ky. App. LEXIS 58 (Ky. Ct. App. 2003).

For the purposes of applying Mandy Jo’s Law, KRS 411.137 , 391.033 , “abandon” means neglect and refusal to perform natural and legal obligations to care and support, withholding of parental care, presence, opportunity to display voluntary affection and neglect to lend support and maintenance; it means also the failure to fulfill responsibility of care, training and guidance during the child’s formative years. Kimbler v. Arms, 102 S.W.3d 517, 2003 Ky. App. LEXIS 58 (Ky. Ct. App. 2003).

When determining if a father forfeited a share of his child’s wrongful death proceeds by abandoning the child, the lack of a visitation order did not bar holding the father’s lack of contact with the child against the father because the father was not relieved of parental obligations. Simms v. Estate of Blake, 2018 Ky. App. LEXIS 132 (Ky. Ct. App. May 11, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 961 (Ky. Ct. App. May 11, 2018).

When determining if a father forfeited a share of his child’s wrongful death proceeds by abandoning the child, the father’s payment of court-ordered child support was not determinative because the father’s obligation of “care and maintenance” required more. Simms v. Estate of Blake, 2018 Ky. App. LEXIS 132 (Ky. Ct. App. May 11, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 961 (Ky. Ct. App. May 11, 2018).

A father was precluded from recovering the father’s intestate share of the settlement proceeds connected with the wrongful death of the father’s adult child because the father willfully abandoned the child. While the father maintained support payments, the father had not seen the child, nor had significant interaction within 15 years of the child’s death, at no time did the father seek visitation, formally or informally, with the child, and the doctrine of equitable estoppel did not bar the mother from claiming abandonment. Simms v. Estate of Blake, 615 S.W.3d 14, 2021 Ky. LEXIS 10 ( Ky. 2021 ).

Trial court did not err in finding appellant had abandoned his stillborn infant daughter and was consequently not entitled to any settlement proceeds or distribution from her estate under Mandy Jo’s Law, because the trial court found clear intent on his part to abandon the child as evidenced by his fleeing after the mother informed him she was pregnant. Miller v. Bunch, 2021 Ky. App. LEXIS 16 (Ky. Ct. App. Feb. 5, 2021).

2.Burden of Proof.

When determining if a father forfeited a share of his child’s wrongful death proceeds by abandoning the child, the applicable burden of proof was a preponderance of the evidence because the issue involved the receipt of money. Simms v. Estate of Blake, 2018 Ky. App. LEXIS 132 (Ky. Ct. App. May 11, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 961 (Ky. Ct. App. May 11, 2018).

When determining if a father forfeited a share of his child’s wrongful death proceeds by abandoning the child, the child’s estate had no burden of proof as to distribution of the proceeds because (1) the proceeds were not part of the estate, and (2) the estate’s administrator had no interest in the proceeds’ distribution, once the proceeds were recovered. Simms v. Estate of Blake, 2018 Ky. App. LEXIS 132 (Ky. Ct. App. May 11, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 961 (Ky. Ct. App. May 11, 2018).

The rights at stake in a case arising under the Kentucky Mandy Jo’s Law do not warrant a heightened standard of proof. Accordingly, trial courts must use the preponderance of the evidence standard when considering claims under Mandy Jo’s Law. Simms v. Estate of Blake, 615 S.W.3d 14, 2021 Ky. LEXIS 10 ( Ky. 2021 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Motion for Declaratory Judgment Asserting “’Mandy Jo’s Law”, Form 141.04.

391.035. District court hearing to determine persons entitled to property passing by intestate succession.

  1. If real or personal property passes by the laws of intestate succession, or under a will to a beneficiary not named in the will, proceedings may be had in the District Court to determine the persons entitled to the property.
    1. If an estate is in process of administration, the executor, administrator, or any person claiming an interest in the property may file a motion in the District Court where administration is in process. If there is no pending administration or administration has been dispensed with, any person claiming an interest in the property may file a motion in the District Court of the county in which the decedent last resided or, if the decedent was not a Kentucky resident, in the District Court of the county in which the property, or the greater part thereof, is located;
    2. The motion shall set forth all of the facts known to the movant relating to the matter, including the names, ages, and addresses of all persons who are or may be entitled to share in the property and their relationship to the decedent or to the class of beneficiaries entitled to share. The motion shall also describe the property under consideration and an estimate of its value;
    3. The motion shall be served in a manner authorized by the Rules of Civil Procedure for the initiation of a civil action and shall set forth the place and time, which shall not be less than twenty (20) days from the date of service, when the motion will come on for hearing.
  2. Upon the hearing on the motion, any person claiming an interest in the property may introduce proof in support of his claim and the court may entertain the admission of any other relevant evidence to aid the court in determining the persons entitled to share in the property.
  3. After hearing all the evidence, the court shall enter judgment in which the names, ages, and addresses of the persons entitled to share in the property are set forth and the proportionate interest of each. The judgment shall be conclusive evidence of the facts determined therein as against all parties, whether known or unknown, to the proceeding.
  4. In a case where some or all of the property is real property located in this state, a certified copy of the judgment shall be recorded in the office of the appropriate county clerk in lieu of the affidavit required by KRS 382.120 . The judgment shall be conclusive evidence of the facts determined therein as against all parties, whether known or unknown, to the proceeding.
  5. Any party may at any time prior to judgment institute an adversary proceeding in Circuit Court pursuant to KRS 24A.120(2).
  6. Any aggrieved party may, no later than thirty (30) days from the date of the judgment, institute an adversary proceeding in Circuit Court pursuant to KRS 24A.120(1)(b).
  7. Any unknown defendants before the court by constructive service alone shall be entitled to the protection afforded by Civil Rule 4.11.
  8. No proceedings under this section shall be conducted by or before a commissioner of the District Court.

History. Enact. Acts 1988, ch. 90, § 2, effective July 15, 1988; 1998, ch. 420, § 1, effective July 15, 1998; 1998, ch. 517, § 10, effective September 1, 1998.

Legislative Research Commission Notes.

(7/15/98). This section was amended by 1998 Ky. Acts chs. 420 and 517 which do not appear to be in conflict and have been codified together.

(6/24/2003). Under the authority of KRS 7.136 , the Reviser of Statutes has changed a reference in subsection (6) of this section from “KRS 24A.120(1)(b)” to “KRS 24A.120(2).”

NOTES TO DECISIONS

Cited in:

Willett v. Estate of Vessells, 629 S.W.3d 20, 2021 Ky. App. LEXIS 84 (Ky. Ct. App. 2021).

391.040. Descendants of distributees take per stirpes.

When any or all of a class first entitled to inherit are dead, leaving descendants, such descendants shall take per stirpes the share of their respective deceased parents.

History. 1394.

NOTES TO DECISIONS

Cited:

Kentucky Trust Co. v. Sweeney, 163 F. Supp. 450, 1958 U.S. Dist. LEXIS 2908 (D. Ky. 1958 ).

Research References and Practice Aids

Cross-References.

Issue of devisee who is dead at time of execution of will or death of devisor take devisee’s share, KRS 394.400 .

Kentucky Law Journal.

Bratt, Kentucky’s Doctrine of Advancements: A Time for Reform, 75 Ky. L.J. 341 (1986-87).

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Northern Kentucky Law Review.

Schneider, A Kentucky Study of Will Provisions: Implications for Intestate Succession Law, 13 N. Ky. L. Rev. 409 (1987).

Schneider, Recommendations for Improving Kentucky’s Inheritance Laws, 22 N. Ky. L. Rev. 317 (1995).

391.050. Collaterals of the halfblood — Inheritance by.

Collaterals of the halfblood shall inherit only half as much as those of the wholeblood, or as ascending kindred, when they take with either.

History. 1395.

NOTES TO DECISIONS

1.Application.

Where the property of an intestate passes under KRS 391.010 to his maternal and paternal kindred and on one side there is only a cousin by the half blood and there are several cousins by full blood on the other, each side takes one half, because this section applies only within a moiety after the division into halves. Brown v. Saunders, 389 S.W.2d 77, 1965 Ky. LEXIS 384 ( Ky. 1965 ).

2.Paternal and Maternal Kindred.

Where there were no heirs above or below the cousin level, one-half of the estate would go to the paternal kindred and the other half to the maternal kindred, notwithstanding that the only heir on the maternal side was a daughter of a maternal half-uncle. Brown v. Saunders, 389 S.W.2d 77, 1965 Ky. LEXIS 384 ( Ky. 1965 ).

3.Illegitimate Child.

The relationship of an illegitimate child to the legitimate children, where he inherits from them, is that of a collateral of half blood under this section. Stevenson v. Washington's Adm'r, 231 Ky. 233 , 21 S.W.2d 274, 1929 Ky. LEXIS 252 ( Ky. 1929 ).

4.Brothers and Sisters.

Brothers and sisters of the half blood are members not of a succeeding class but of the same class as the full brothers and sisters. Morris v. Sparrow, 459 S.W.2d 768, 1970 Ky. LEXIS 151 ( Ky. 1970 ), cert. denied, 403 U.S. 939, 91 S. Ct. 2254, 29 L. Ed. 2d 718, 1971 U.S. LEXIS 1611 (U.S. 1971), cert. denied, 411 U.S. 985, 93 S. Ct. 2283, 36 L. Ed. 2d 963, 1973 U.S. LEXIS 2466 (U.S. 1973).

Two half sisters of the deceased were not barred from intestate succession by the existence of a daughter of a sister of the full blood. Morris v. Sparrow, 459 S.W.2d 768, 1970 Ky. LEXIS 151 ( Ky. 1970 ), cert. denied, 403 U.S. 939, 91 S. Ct. 2254, 29 L. Ed. 2d 718, 1971 U.S. LEXIS 1611 (U.S. 1971), cert. denied, 411 U.S. 985, 93 S. Ct. 2283, 36 L. Ed. 2d 963, 1973 U.S. LEXIS 2466 (U.S. 1973).

5.Half-blood Kin.

Where one dies intestate survived by his mother and four half-sisters, the mother takes one-half of his estate and the other one-half goes to his half-sisters in equal parts. Berg v. Berg's Adm'r, 105 Ky. 80 , 48 S.W. 432, 20 Ky. L. Rptr. 1083 , 1898 Ky. LEXIS 249 ( Ky. 1898 ).

Where one dies intestate survived only by a full brother and a half-sister, the full brother takes two-thirds and the half-sister takes one-third. Covington v. Beck, 219 Ky. 84 , 292 S.W. 752, 1927 Ky. LEXIS 295 ( Ky. 1927 ).

Where an infant inherited land from his father and then died while an infant and without issue, the land passed to the father’s kindred under KRS 391.020 and not to his half-brothers and half-sisters under this section. McCoy v. Ferguson, 249 Ky. 334 , 60 S.W.2d 931, 1933 Ky. LEXIS 518 ( Ky. 1933 ).

Where a minor dies without issue after receiving realty from his deceased father and the father had six other children, two of whom were full brothers of the decedent and four were by a prior marriage, the descent is determined in accordance with the relationship of the kindred to the father rather than to the deceased son. White v. Hogge, 291 S.W.2d 22, 1956 Ky. LEXIS 361 ( Ky. 1956 ).

Where an intestate was survived by descendants of brothers of the half blood and aunts and uncles of the whole blood, the descendants of the brothers of the half blood inherited the entire estate. Ragland v. Shrout, 476 S.W.2d 820, 1972 Ky. LEXIS 391 ( Ky. 1972 ).

Cited:

West v. Hardwick’s Ex’r, 301 Ky. 312 , 191 S.W.2d 385, 1945 Ky. LEXIS 724 ( Ky. 1945 ); Kentucky Trust Co. v. Sweeney, 163 F. Supp. 450, 1958 U.S. Dist. LEXIS 2908 (D. Ky. 1958 ).

Research References and Practice Aids

Kentucky Law Journal.

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Northern Kentucky Law Review.

Schneider, Recommendations for Improving Kentucky’s Inheritance Laws, 22 N. Ky. L. Rev. 317 (1995).

Treatises

Treatises

Petrilli, Kentucky Family Law, 1991 Supp., Illegitimacy and Paternity Proceedings, § 31.7.

391.060. Title may be inherited through alien.

When title is acquired by descent, it shall be no bar to a person taking title through descent that any ancestor through whom he derives his descent from the intestate is or has been an alien.

History. 1396.

Research References and Practice Aids

Cross-References.

Alien may inherit and pass property by descent, when, KRS 381.290 to 381.340 .

Northern Kentucky Law Review.

Schneider, A Kentucky Study of Will Provisions: Implications for Intestate Succession Law, 13 N. Ky. L. Rev. 409 (1987).

391.070. Posthumous child — Inheritance by.

A child born of a widow, within ten (10) months after the death of the intestate, shall inherit from him in the same manner as if he were in being at the time of the intestate’s death.

History. 1399.

NOTES TO DECISIONS

1.Judicial Sale of Parent’s Land.

The rights of a posthumous child are affected as regards her inheritance from her father by a judicial sale of the property at the instigation of the guardian of other children for the purposes of division of the estate. Massie v. Hiatt's Adm'r, 82 Ky. 314 , 6 Ky. L. Rptr. 176 , 1884 Ky. LEXIS 81 (Ky. Ct. App. 1884) (decided under prior law).

A posthumous child’s inheritance cannot be affected by a judicial sale of the father’s land before her birth under a judgment taken against the father in his lifetime. Cole v. Lewis, 159 Ky. 747 , 169 S.W. 490, 1914 Ky. LEXIS 883 ( Ky. 1914 ).

Research References and Practice Aids

Cross-References.

Posthumous child, share of taken from residuary estate, KRS 394.460 .

Posthumous child treated as devisee, KRS 394.470 .

Pretermitted child to receive same share as in case of intestacy, KRS 394.382 .

Kentucky Law Journal.

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

391.080. Adopted child; inheritance by and from. [Repealed.]

Compiler’s Notes.

This section (3316-8) was repealed by Acts 1950, ch. 125, § 33.

391.090. Bastards — Inheritance from and by — Effect of marriage of parents. [Repealed.]

Compiler’s Notes.

This section (1397, 1398) was repealed by Acts 1986, ch. 331, § 63, effective July 15, 1986.

This section was declared unconstitutional in Rudolph v. Rudolph, 556 S.W.2d 152 (Ky. Ct. App. 1977) and Pendleton v. Pendleton, 560 S.W.2d 538 ( Ky. 1977 ). The Supreme Court held that its decision should have no retroactive effect upon the devolution of any title occurring before April 26, 1977, except for those specific instances in which the dispositive constitutional issue of equal protection was then in the process of litigation.

391.100. Children of illegal or void marriages considered as if born in lawful wedlock.

The issue of all illegal or void marriages is considered as if born in lawful wedlock.

History. 2098: amend. Acts 1974, ch. 49, § 5; 1984, ch. 16, § 8, effective July 13, 1984.

NOTES TO DECISIONS

1.Application.

This section is applicable to a child begotten before marriage but born thereafter, and makes such a child legitimate, even though the marriage is bigamous. Bates v. Meade, 174 Ky. 545 , 192 S.W. 666, 1917 Ky. LEXIS 227 ( Ky. 1917 ). See Swinney v. Klippert, 50 S.W. 841, 20 Ky. L. Rptr. 2014 (1899).

2.Bigamy.

Under law providing that the issue of a void or illegal marriage shall be legitimate, the issue of a bigamous marriage is legitimate even though the bigamous marriage was entered into with full knowledge on the part of both parties that one of them had a living wife from which he had not secured a divorce or annulment. Harris v. Harris, 85 Ky. 49 , 2 S.W. 549, 8 Ky. L. Rptr. 727 , 1887 Ky. LEXIS 12 ( Ky. 1887 ) (decided under prior law).

The issue of a bigamous marriage, entered into by residents of Kentucky in the state of Illinois, were legitimate where the parties returned to Kentucky and lived as man and wife and where the children were born in Kentucky. Leonard v. Braswell, 99 Ky. 528 , 36 S.W. 684, 18 Ky. L. Rptr. 395 , 1896 Ky. LEXIS 119 ( Ky. 1896 ).

This section is applicable and the issue of a bigamous marriage contracted with full knowledge on the part of all concerned of the already existing marriage of one of the parties with another is legitimate. Martin v. Coburn, 266 Ky. 176 , 98 S.W.2d 483, 1936 Ky. LEXIS 628 ( Ky. 1936 ).

3.Common-law Marriage.

Where common-law marriage in a foreign state was void because one party was legally married, child of the void common-law marriage was made legitimate by this section, and was entitled to inherit the property of her father’s brother. Copenhaver v. Hemphill, 314 Ky. 356 , 235 S.W.2d 778, 1951 Ky. LEXIS 655 ( Ky. 1951 ).

4.Incestuous Marriage.

Children born as a result of an incestuous marriage are made illegitimate by an annulment of the marriage on the grounds of incest during the lifetime of the parties to the marriage. Baker v. Thomas, 272 Ky. 605 , 114 S.W.2d 1113, 1938 Ky. LEXIS 170 ( Ky. 1938 ) (Decision prior to 1984 amendment).

Illegitimate children under incestuous marriage could inherit from their mother but not from their father. Baker v. Thomas, 272 Ky. 605 , 114 S.W.2d 1113, 1938 Ky. LEXIS 170 ( Ky. 1938 ) (Decision prior to 1984 amendment).

Cited:

McGoodwin v. Shelby, 181 Ky. 230 , 204 S.W. 171, 1918 Ky. LEXIS 523 ( Ky. 1918 ); Smith v. Smith, 242 S.W.2d 860, 1951 Ky. LEXIS 1080 (Ky. Ct. App. 1951).

Research References and Practice Aids

Kentucky Law Journal.

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Northern Kentucky Law Review.

Comment, Illegitimate Intestate Succession Rights in Kentucky: “Why Brands They Us With Base: With Baseness? Bastardy? Base, Base?” 3 N. Ky. L. Rev. 196 (1976).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Annulment (Declaration of Invalidity), § 252.00.

Petrilli, Kentucky Family Law, Annulment of Marriage, § 10.15.

Petrilli, Kentucky Family Law, Illegitimacy and Paternity Proceedings, §§ 31.1, 31.2, 31.5.

Petrilli, Kentucky Family Law, Marriage in General, §§ 1.4b, 1.4d, 1.4e.

391.105. Determination of rights of intestate succession in the case of a person born out of wedlock.

  1. For the purpose of intestate succession, if a relationship of parent and child must be established to determine succession by, through, or from a person, a person born out of wedlock is a child of the natural mother. That person is also a child of the natural father if:
    1. The natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or
    2. In determining the right of the child or its descendants to inherit from or through the father:
      1. There has been an adjudication of paternity before the death of the father; or
      2. There has been an adjudication of paternity after the death of the father based upon clear and convincing proof;
    3. In determining the right of the father or his kindred to inherit from or through the child:
      1. There has been an adjudication of paternity before the death of the child; or
      2. There has been an adjudication of paternity after the death of the child based on clear and convincing proof and the evidence in such adjudication shall have demonstrated that the father openly treated the child as his, and the father did not follow a consistent policy of refusing to support the child on the ground of nonpaternity.
  2. The terms and conditions set out in this section shall also apply in actions brought pursuant to KRS 411.130 and 411.135 .

History. Enact. Acts 1988, ch. 90, § 3, effective July 15, 1988.

NOTES TO DECISIONS

1.In General.

Illegitimate daughter of a decedent who died in 1962 had no claim to real property owned by the decedent when he died; former KRS 391.090 , which governed intestate succession at that time, did not allow illegitimate children to inherit from their fathers, and a 1977 ruling striking down the statute as unconstitutional was not retroactive. Turner v. Perry County Coal Corp., 242 S.W.3d 658, 2007 Ky. App. LEXIS 96 (Ky. Ct. App. 2007), cert. denied, 555 U.S. 818, 129 S. Ct. 80, 172 L. Ed. 2d 29, 2008 U.S. LEXIS 6840 (U.S. 2008).

2.Equal Protection Clauses.

The proof requirement of the statute does not violate the equal protection clauses of the federal or state constitution. Harris v. Stewart, 981 S.W.2d 122, 1998 Ky. App. LEXIS 14 (Ky. Ct. App. 1998).

Research References and Practice Aids

Kentucky Law Journal.

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

391.110. Slave marriage valid; issue legitimate. [Repealed.]

Compiler’s Notes.

This section (1399a, 1399b-1, 1399b-2) was repealed by Acts 1966, ch. 184, § 8.

391.120. Descendants have equal rights.

No tenant in common shall have any privilege over another in any election, division or matter to be done or made, concerning lands which have descended to them.

History. 1402.

Research References and Practice Aids

Kentucky Law Journal.

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

391.130. Descendants may recover annuity not fully earned at annuitant’s death.

Whenever any person entitled to an annuity dies within the year, and before the annuity is fully earned, the heirs or personal representative of that person may recover such proportion of the entire amount of the annuity as the time of the year already elapsed at the date of the death of the annuitant bears to the entire year.

History. 2070.

Research References and Practice Aids

Cross-References.

Obligation to person dead at time of execution of obligation may be enforced by representative, KRS 371.060 .

Rent to be apportioned between representative and heirs of landlord who dies before it is due, KRS 395.360 .

391.140. Advancements — Effect on descendant’s, widow’s, and widower’s share.

  1. Any real or personal property or money, given or devised by a parent or grandparent to a descendant, shall be charged to the descendant or those claiming through him in the division and distribution of the undevised estate of the parent or grandparent. The person to whom the property or money was given or devised shall receive nothing further from the estate until the shares of the other descendants are made proportionately equal with his, according to his descendable and distributable share of the whole estate, real and personal, devised and undevised. The advancement shall be estimated according to the value of the property when given. The maintaining or educating or the giving of money, to a child or grandchild, without any view to a portion or settlement in life, shall not be deemed an advancement.
  2. Advancements made to distributees shall not be taken as a part of the decedent’s personal estate in estimating the distributable share of the widow or widower in the estate.

History. 1407, 1408: amend. Acts 1974, ch. 386, § 76.

NOTES TO DECISIONS

1.Purpose.

While the character and value of the ancestor’s estate, the amount given to the children, and the purposes for which they are to be applied may be considered, the object of this section is to procure equality in the distribution of undevised estates. Gossage v. Gossage's Adm'r, 281 Ky. 575 , 136 S.W.2d 775, 1940 Ky. LEXIS 70 ( Ky. 1940 ).

2.Application.

This section is applicable to cases of partial intestacy. Walters v. Neafus, 136 Ky. 756 , 125 S.W. 167, 1910 Ky. LEXIS 539 ( Ky. 1910 ).

This section is not applicable where the entire estate of the decedent is disposed of by his will. Gulley v. Lillard's Ex'r, 145 Ky. 746 , 141 S.W. 58, 1911 Ky. LEXIS 934 ( Ky. 1911 ). See Melton v. Sellars, 167 Ky. 704 , 181 S.W. 346, 1916 Ky. LEXIS 464 ( Ky. 1916 ); Brewer's Adm'r v. Brewer, 181 Ky. 400 , 205 S.W. 393, 1918 Ky. LEXIS 536 ( Ky. 1918 ); Jones v. Jones' Ex'rs, 198 Ky. 756 , 250 S.W. 92, 1923 Ky. LEXIS 559 ( Ky. 1923 ); Stiff's Ex'r v. Stiff, 217 Ky. 716 , 290 S.W. 718, 1927 Ky. LEXIS 77 ( Ky. 1927 ).

The advancement statute does not apply where there is no undevised estate. Sandidge v. Kentucky Trust Co., 402 S.W.2d 105, 1966 Ky. LEXIS 359 ( Ky. 1966 ).

3.Advancements.

Where a testator devised property to some of his children and deeded property to other children, and in each instance specified that the property so devised or deeded was all the devisees or grantees were to have out of his estate, and then died intestate as to a part of his estate, the devisees or grantees were charged with advancements to the extent of the property devised or deeded and were entitled to share with the other children in the distribution of the intestate property. Phillups v. Phillups, 93 Ky. 498 , 20 S.W. 541, 14 Ky. L. Rptr. 493 , 1892 Ky. LEXIS 127 ( Ky. 1892 ) (decided under prior law).

In cases of partial intestacy an heir, who is a devisee in the will, is charged with an advancement of the value of the devise in distributing the intestate property. Walters v. Neafus, 136 Ky. 756 , 125 S.W. 167, 1910 Ky. LEXIS 539 ( Ky. 1910 ).

An advancement is made with the intention that it shall be charged to the donee in the distribution of the donor’s estate. Brewer's Adm'r v. Brewer, 181 Ky. 400 , 205 S.W. 393, 1918 Ky. LEXIS 536 ( Ky. 1918 ).

An ordinary advancement does not create a relationship of debtor and creditor and no recovery can be had for the excess of the advancement over the donee’s distributable share of the estate of the donor. McPherson v. Black, 215 Ky. 92 , 284 S.W. 413, 1926 Ky. LEXIS 655 ( Ky. 1926 ).

Where father deeded land to his children, reciting in each deed that it was an advancement and that each should repay sufficient to make all equal, it was an advancement to the extent of a child’s share and each grantee was under a legal obligation to pay back a sum to make the children share the estate of the decedent equally. McPherson v. Black, 215 Ky. 92 , 284 S.W. 413, 1926 Ky. LEXIS 655 ( Ky. 1926 ).

Where unequal devises and bequests are made in testator’s will and a large part of his estate is not covered by the will, the unequal devises or bequests are treated as advancements in the settlement of his estate. Nolan's Ex'rs v. Nolan, 220 Ky. 613 , 295 S.W. 893, 1927 Ky. LEXIS 580 ( Ky. 1927 ).

Section (1) and section (2) must be read together, and section (2) is confined to advancements defined in section (1). Talbott's Ex'r v. Goetz, 286 Ky. 504 , 151 S.W.2d 369, 1941 Ky. LEXIS 296 ( Ky. 1941 ).

Advancement, under this section, is a gift from a parent to a child, or by a grandparent to a grandchild. Talbott's Ex'r v. Goetz, 286 Ky. 504 , 151 S.W.2d 369, 1941 Ky. LEXIS 296 ( Ky. 1941 ).

An advancement is an irrevocable gift, not required by law, made by a parent, during his lifetime, to his child, with the intention on the part of the donor that such gift shall represent a part or the whole of his portion of the donor’s estate that the donee would be entitled to on the death of the donor intestate. Talbott's Ex'r v. Goetz, 286 Ky. 504 , 151 S.W.2d 369, 1941 Ky. LEXIS 296 ( Ky. 1941 ).

An advancement is a gift made with the intention that it shall be charged to the donee in the distribution of the donor’s estate. Chism v. Chism, 296 Ky. 73 , 176 S.W.2d 101, 1943 Ky. LEXIS 101 ( Ky. 1943 ).

If a parent gives a child, or certain of his children a part only of his estate, and dies intestate as to the remainder, the law will take hold of the undisposed part and apply a sufficient amount of it to equalize the others with the favored ones, or to equalize them as far as may be done with the undisposed part of the estate. Remmele v. Kinstler, 298 S.W.2d 680, 1957 Ky. LEXIS 380 ( Ky. 1957 ). See McCray v. Corn, 168 Ky. 457 , 182 S.W. 640, 1916 Ky. LEXIS 590 ( Ky. 1916 ); Isgrigg v. Isgrigg, 179 Ky. 260 , 200 S.W. 478, 1918 Ky. LEXIS 208 ( Ky. 1918 ); Thompson v. Latimer, 209 Ky. 491 , 273 S.W. 65, 1925 Ky. LEXIS 527 ( Ky. 1925 ).

4.— Payment for Services.

The value of services rendered to an adult, incompetent child by his parent cannot be charged as an advancement to the child in the settlement of the estate of the parent. Crain v. Mallone, 130 Ky. 125 , 113 S.W. 67, 1908 Ky. LEXIS 250 ( Ky. 1908 ).

Where a daughter and two sons lived with their mother and the sons farmed the mother’s property and the daughter performed services about the household until she married at age 33, ten years before her mother’s death, and the mother gave her about $75 worth of personal property and conveyed land worth about $4,500 to the sons, the court properly found that the transfer of land was an advancement, although the deed recited consideration which the sons contended paid through the performance of services, and found that the daughter was entitled to $1,500 to offset the advancement. McCray v. Corn, 168 Ky. 457 , 182 S.W. 640, 1916 Ky. LEXIS 590 ( Ky. 1916 ).

Where a parent conveys land to a child, the consideration being that the child should care for the parent, and the child performs by taking care of the parent and the value of the property given is not greatly in excess of the value of the care given, the deed is supported by a valuable consideration and the gift is not an advancement. Day v. Grubbs, 235 Ky. 741 , 32 S.W.2d 327, 1930 Ky. LEXIS 457 ( Ky. 1930 ).

Conveyance of realty, constituting all of grantor’s property, in consideration of love and affection to certain children who had supported grantor and his predeceased wife for many years must be treated under statute as an “advancement” upon the death of grantor intestate as to property bequeathed to grantor after conveyance, in absence of any contract for support of grantor by grantees. Remmele v. Kinstler, 298 S.W.2d 680, 1957 Ky. LEXIS 380 ( Ky. 1957 ). See McCray v. Corn, 168 Ky. 457 , 182 S.W. 640, 1916 Ky. LEXIS 590 ( Ky. 1916 ); Isgrigg v. Isgrigg, 179 Ky. 260 , 200 S.W. 478, 1918 Ky. LEXIS 208 ( Ky. 1918 ); Thompson v. Latimer, 209 Ky. 491 , 273 S.W. 65, 1925 Ky. LEXIS 527 ( Ky. 1925 ).

The fact that services have been rendered which might have answered as consideration for a conveyance by an ancestor to a descendant is not sufficient to avoid treatment of the conveyance as an advancement, nor does the fact that the ancestor desired to make the gift because of such services. Remmele v. Kinstler, 298 S.W.2d 680, 1957 Ky. LEXIS 380 ( Ky. 1957 ).

In order for a transfer to be in payment for services rather than an advancement, the fact that services have been performed which could answer as consideration is alone not sufficient, but the parties must have also intended at the time of the transfer that it was in consideration of such services. Thomas v. Thomas, 398 S.W.2d 231, 1965 Ky. LEXIS 40 ( Ky. 1965 ).

5.— Transfer of Property.

Where a deed recited that consideration was paid for the transfer, the person asserting that it was an advancement has the burden of proving that the transfer was not for valuable consideration, but he is not required to allege that the recitation of consideration was fraud or a mistake. McCray v. Corn, 168 Ky. 457 , 182 S.W. 640, 1916 Ky. LEXIS 590 ( Ky. 1916 ).

Where a parent deeded land to her children for a recited consideration but no money was paid by the children to the parent, the consideration being work and labor of the children in caring for the parent, the deed was an advancement and was chargeable against the children in settling the estate of the deceased parent. McCray v. Corn, 168 Ky. 457 , 182 S.W. 640, 1916 Ky. LEXIS 590 ( Ky. 1916 ).

If the consideration for the transfer is not sufficient to indicate that a sale was contemplated, the transaction is an advancement. Gossage v. Gossage's Adm'r, 281 Ky. 575 , 136 S.W.2d 775, 1940 Ky. LEXIS 70 ( Ky. 1940 ).

A recited consideration may be shown to be fictitious without an allegation of fraud or mistake. Gossage v. Gossage's Adm'r, 281 Ky. 575 , 136 S.W.2d 775, 1940 Ky. LEXIS 70 ( Ky. 1940 ).

A transfer is not a sale merely because it is denominated such. Gossage v. Gossage's Adm'r, 281 Ky. 575 , 136 S.W.2d 775, 1940 Ky. LEXIS 70 ( Ky. 1940 ).

It is not necessary that consideration be equal to the price which would be charged a stranger, since allowance may be made for natural affection. Gossage v. Gossage's Adm'r, 281 Ky. 575 , 136 S.W.2d 775, 1940 Ky. LEXIS 70 ( Ky. 1940 ).

The undertaking of grantees to pay grantors, who were grantees’ parents, during grantors’ lives, one-third of what grantees “shall make on said land” and to pay taxes, was not sufficient consideration to support a sale as distinguished from an advancement. Gossage v. Gossage's Adm'r, 281 Ky. 575 , 136 S.W.2d 775, 1940 Ky. LEXIS 70 ( Ky. 1940 ).

A grantor cannot convert an advancement into something else merely by reciting that the transfer is not an advancement. Thomas v. Thomas, 398 S.W.2d 231, 1965 Ky. LEXIS 40 ( Ky. 1965 ).

In order to avoid this section a transfer must be a sale rather than a gift, so that, where a mother transferred realty to her daughters in appreciation, rather than in consideration, of their past services in caring for her and there was no computation of the value of such services and no demand for payment, the transfer was an advancement. Thomas v. Thomas, 398 S.W.2d 231, 1965 Ky. LEXIS 40 ( Ky. 1965 ).

6.— Gifts.

Where there is a gift by an ancestor to a descendant, the gift is treated as an advancement even though the ancestor intended that it not be so treated. Isgrigg v. Isgrigg, 179 Ky. 260 , 200 S.W. 478, 1918 Ky. LEXIS 208 ( Ky. 1918 ). See Remmele v. Kinstler, 298 S.W.2d 680, 1957 Ky. LEXIS 380 ( Ky. 1957 ).

Where a parent and a child agree that a gift by the parent to a third party will be treated as an advancement to the child, such gift is an advancement to the child. Weddle v. Waddle's Adm'r, 261 Ky. 208 , 87 S.W.2d 383, 1935 Ky. LEXIS 628 ( Ky. 1935 ).

The law of advancements has never been applied to gifts made by a decedent to his wife in this lifetime. Talbott's Ex'r v. Goetz, 286 Ky. 504 , 151 S.W.2d 369, 1941 Ky. LEXIS 296 ( Ky. 1941 ).

7.— — Given to In-laws.

Gifts to the husband of the daughter will be an advancement to the daughter if the sole consideration is the marriage relation between the daughter and her husband. Such gifts will be presumed advancements against the children of the daughter. But if such gifts are made after the death of the daughter they will not be considered advancements unless pursuant to a parol promise made during her lifetime. Stevenson v. Martin, 74 Ky. 485 , 1875 Ky. LEXIS 41 ( Ky. 1875 ) (decided under prior law). See Barber v. Taylor's Heirs, 39 Ky. 84 , 1839 Ky. LEXIS 89 ( Ky. 1839 ) (decided under prior law).

8.— — Given to Child.

A son who received a sum of money from his father, and signed a receipt showing that he accepted the sum as his “full proportion” of his father’s estate, was entitled to nothing else therefrom. Cushing v. Cushing, 70 Ky. 259 , 1870 Ky. LEXIS 49 ( Ky. 1870 ) (decided under prior law).

In determining whether a gift by the father to the child comes within the exception set out in this section, the intention of the father in making the gift will not govern, but the court will be governed by the character and value of the ancestor’s estate, the sum of money given the children, and the purposes for which it is to be applied. Bowles v. Winchester, 76 Ky. 1 , 1877 Ky. LEXIS 1 ( Ky. 1 877 ) (decided under prior law).

The gift of a reasonable sum of money by the parent to the child for education, amusement, health, travel, or temporary enjoyment is not an advancement to the child, but a gift without any view to a portion or settlement in life, under the exception in this section. Bowles v. Winchester, 76 Ky. 1 , 1877 Ky. LEXIS 1 ( Ky. 1 877 ) (decided under prior law).

An advancement made by a parent to a child will not be considered a debt owed the parent by the child. Edwards v. Livesay, 203 Ky. 53 , 261 S.W. 839, 1924 Ky. LEXIS 839 ( Ky. 1924 ).

Money given to a child “to even up with the land” which decedent gave his other children was an advancement. Popplewell v. Flanagan, 244 S.W.2d 445, 1951 Ky. LEXIS 1213 ( Ky. 1951 ).

Gifts of money and personalty at the time children marry are not advancements where they were not made with a view to a portion or settlement in life, especially where each child received approximately equal amounts. Popplewell v. Flanagan, 244 S.W.2d 445, 1951 Ky. LEXIS 1213 ( Ky. 1951 ).

9.— Use of Land.

A daughter who lives upon her father’s land and pays no rent therefor is chargeable with the reasonable value of the use of the land as an advancement. Hamilton v. Moore, 70 S.W. 402, 24 Ky. L. Rptr. 982 (1902). See Garrott v. Rives, 80 S.W. 519, 25 Ky. L. Rptr. 2165 , 26 Ky. L. Rptr. 10 (Ky. Ct. App. 1904).

Where children lived with widowed mother on her land which they farmed, at the same time caring for the widowed mother, the children were not to be charged with rents on the farm as advancements. McCray v. Corn, 168 Ky. 457 , 182 S.W. 640, 1916 Ky. LEXIS 590 ( Ky. 1916 ).

Although the rental value of property may be treated as an advancement, where decedent’s sons were allowed to use her land and they substantially improved and built up the land by their skill and labor thus benefitting the other heirs, it was not proper to charge them with the rental value of the land as an advancement. McCray v. Corn, 168 Ky. 457 , 182 S.W. 640, 1916 Ky. LEXIS 590 ( Ky. 1916 ).

Where an intestate allowed his daughter and her husband to occupy and use certain land as their own for several years, acquiesced to the daughter and son-in-law treating the property as their own, but never made a deed to the daughter, the trial court properly refused to charge the daughter for the rental value of the land, which would have equalled about twice the value of the land at the time the intestate allowed the daughter to occupy it, refused to treat the land itself as an advancement to the daughter, and ordered the land distributed with the rest of the estate. Isgrigg v. Isgrigg, 179 Ky. 260 , 200 S.W. 478, 1918 Ky. LEXIS 208 ( Ky. 1918 ).

Where father made a parol gift of land to his daughter and she occupied the land as her own for several years prior to father’s death, but no deed conveying title was executed, she was not chargeable with advancements as to rents for the period she occupied and used the land. Isgrigg v. Isgrigg, 179 Ky. 260 , 200 S.W. 478, 1918 Ky. LEXIS 208 ( Ky. 1918 ).

10.— Support and Education of Child.

No charge for an advancement shall be raised against a distributee for money furnished to him or paid by his parent for his education in the ordinary discharge of the natural duty of the parent to provide for his child’s comfort and education. Brannock v. Hamilton, 72 Ky. 446 , 1872 Ky. LEXIS 74 ( Ky. 1872 ) (decided under prior law).

Money furnished to a child in order for him to obtain a professional education was chargeable against him as an advancement in the settlement of the estate of his father where the father kept a book account of the amount so furnished indicating that he intended to charge the son for the money so furnished. Hill's Guardian v. Hill, 122 Ky. 681 , 92 S.W. 924, 29 Ky. L. Rptr. 201 , 1906 Ky. LEXIS 88 ( Ky. 1906 ).

A father voluntarily aiding a son by paying his attorney’s fees and giving him a small sum of money does not create a debt nor an advancement under this section. Chism v. Chism, 296 Ky. 73 , 176 S.W.2d 101, 1943 Ky. LEXIS 101 ( Ky. 1943 ).

In the absence of a contrary intent, payment of a child’s hospital bill is not an advancement to the child. Popplewell v. Flanagan, 244 S.W.2d 445, 1951 Ky. LEXIS 1213 ( Ky. 1951 ).

11.— Insurance.

Whether treated as a gift or in the light of a testamentary assignment, the amount of the insurance policy received by each beneficiary after the death of the intestate will constitute the sum to be charged as an advancement. Thompson v. Latimer, 209 Ky. 491 , 273 S.W. 65, 1925 Ky. LEXIS 527 ( Ky. 1925 ).

Where an ancestor revocably designates a descendant as the beneficiary of a policy of insurance on the ancestor’s life, the proceeds of the policy received by the descendant upon the death of the ancestor is an advancement. Thompson v. Latimer, 209 Ky. 491 , 273 S.W. 65, 1925 Ky. LEXIS 527 ( Ky. 1925 ).

12.— Value of Property.

Where father had conveyance made to his sons in 1823, reserving a life interest for himself, and in 1842 entered into an agreement in which he relinquished his life interest, and in 1849 made a deed conveying the land, it was held that the value should be fixed as of 1842. Hook v. Hook, 42 Ky. 526 (1853) (decided under prior law). See Stevenson v. Martin, 74 Ky. 485 , 1875 Ky. LEXIS 41 ( Ky. 1875 ) (decided under prior law).

Where the testator required his sons to pay $4,000 for land which he devised to them, and it was evident that the testator valued the land at more than the sum paid and intended an advancement in the amount of the difference between $4,000 and the sum paid, and the value of the land and that sum should be ascertained and charged against the sons as an advancement. Renaker v. Lafferty's Adm'r, 68 Ky. 88 , 1868 Ky. LEXIS 231 ( Ky. 1868 ) (decided under prior law).

Where the testator dies partially intestate and in his will places a value upon the property devised to the children the value so placed is not controlling in fixing the amount of the advancement. Bowles v. Winchester, 76 Ky. 1 , 1877 Ky. LEXIS 1 ( Ky. 1 877 ) (decided under prior law).

Where the father makes a parol gift of land to his child and then devises the land to his child in his will, the value of the land is to be ascertained as of the date of the death of the father, at which time the gift was made perfect. Bowles v. Winchester, 76 Ky. 1 , 1877 Ky. LEXIS 1 ( Ky. 1 877 ) (decided under prior law).

Where a parent died partially intestate, and in his will devised realty to the child for life and at his death to his children, and in the event the child died without living issue to the father’s heirs-at-law, in distributing the intestate property such a child was chargeable with the value of a fee simple estate in the devised property. Bowles v. Winchester, 76 Ky. 1 , 1877 Ky. LEXIS 1 ( Ky. 1 877 ) (decided under prior law).

Where encumbered land is conveyed by a parent to his child the value of the land is its value less the encumbrance. Garrott v. Rives, 80 S.W. 519, 25 Ky. L. Rptr. 2165 , 26 Ky. L. Rptr. 10 (Ky. Ct. App. 1904).

Where a father settled his children on various tracts of land telling them that he was giving the land to them, and years later executed a deed to each child for the land on which the child was settled, the amount of advancement to each child was the value of the land at the time the deeds were executed, without regard to rents and improvements. Ward v. Johnson, 124 Ky. 1 , 97 S.W. 1110, 30 Ky. L. Rptr. 240 , 30 Ky. L. Rptr. 417 , 1906 Ky. LEXIS 229 (Ky. Ct. App. 1906). See Edwards v. Livesay, 203 Ky. 53 , 261 S.W. 839, 1924 Ky. LEXIS 839 ( Ky. 1 924 ).

The value of advancements is to be estimated at the time made, except when they are to be enjoyed at a future time. In the latter event, the value is to be estimated at the time at which the gift is made complete by possession and enjoyment of the property by the child. Farley v. Stacey, 177 Ky. 109 , 197 S.W. 636, 1917 Ky. LEXIS 562 ( Ky. 1917 ).

The value of property advanced is fixed as of the day the advancement is made, which in the case of an advancement of the use and occupation of land would be the time at which such use and occupation was enjoyed. Isgrigg v. Isgrigg, 179 Ky. 260 , 200 S.W. 478, 1918 Ky. LEXIS 208 ( Ky. 1918 ).

Where life estate is reserved in donor of advancement, value of advancement is fixed as of date of death of donor and not as of date of conveyance. Gossage v. Gossage's Adm'r, 281 Ky. 575 , 136 S.W.2d 775, 1940 Ky. LEXIS 70 ( Ky. 1940 ).

Where advancement contained charge on land in favor of donor and his wife for their lives, the value of the advancement was determined as of date of donor’s death by deducting value of charge on land remaining in favor of wife, as against contention that valuation should have been postponed until extinguishment of charge by death of wife. Gossage v. Gossage's Adm'r, 281 Ky. 575 , 136 S.W.2d 775, 1940 Ky. LEXIS 70 ( Ky. 1940 ).

Where conveyance is to child for life with remainder to his descendants, value of life estate of child who is donee is ignored and the value of the fee as of death of donor is charged as an advancement against the child. Gossage v. Gossage's Adm'r, 281 Ky. 575 , 136 S.W.2d 775, 1940 Ky. LEXIS 70 ( Ky. 1940 ).

Where life estate is reserved for benefit of person other than donor, value of life estate continuing after death of donor is ascertained as of date of death of donor and deducted from the value of the fee. Gossage v. Gossage's Adm'r, 281 Ky. 575 , 136 S.W.2d 775, 1940 Ky. LEXIS 70 ( Ky. 1940 ).

Advancements are chargeable to the distributee at their value at the time the advancements were made. Damron v. Bartley, 302 Ky. 83 , 194 S.W.2d 73, 1946 Ky. LEXIS 613 ( Ky. 1946 ).

Where, as an advancement, a farm is given with the reservation of a percentage of the products therefrom for the lives of the decedent and his wife, the amount of the advancement is the value of the farm on the date of gift less the value on that date of the retained interest in farm products, which could be determined by several proper methods. Popplewell v. Flanagan, 244 S.W.2d 445, 1951 Ky. LEXIS 1213 ( Ky. 1951 ).

Where, as an advancement, a farm was given, subject to life estates of the decedent and his wife, the amount of the advancement was the value of the farm at the decedent’s death less the value of the surviving widow’s life estate at that time. Popplewell v. Flanagan, 244 S.W.2d 445, 1951 Ky. LEXIS 1213 ( Ky. 1951 ).

13.— Debts.

Debts owed by the heir to the decedent are not advancements. The heir is entitled to his distributable share of the estate without regard to debts owed by him to the estate unless such debts are pleaded as an offset by the personal representative of the decedent. Thompson v. Myers, 95 Ky. 597 , 26 S.W. 1014, 16 Ky. L. Rptr. 139 , 1894 Ky. LEXIS 73 ( Ky. 1894 ).

An advancement to a child operates to satisfy a debt owed by the parent to the child where the amount of the advancement is equal to or greater than the amount of the debt. Brooks' Assignee v. Summers, 100 Ky. 620 , 38 S.W. 1047, 18 Ky. L. Rptr. 1026 , 1897 Ky. LEXIS 31 ( Ky. 1897 ).

The mere fact that the father took a note from his daughter in the amount of money given her does not prevent the gift from being chargeable as an advancement to her in the settlement of his intestate estate. Frye v. Avritt, 68 S.W. 420, 24 Ky. L. Rptr. 183 , 1902 Ky. LEXIS 349 (Ky. Ct. App. 1902).

If a debtor-creditor relationship exists between the parent and child it cannot be considered an advancement to the child in the settlement of the estate of the deceased parent. Luscher v. Security Trust Co., 178 Ky. 593 , 199 S.W. 613, 1918 Ky. LEXIS 425 ( Ky. 1918 ) ( Ky. 1918 ).

If various children receive advancements of different amounts those who received the lesser amounts are to be made equal to the others before any further distribution of the estate is made. Edwards v. Livesay, 203 Ky. 53 , 261 S.W. 839, 1924 Ky. LEXIS 839 ( Ky. 1924 ).

Where the son owes the father a debt they may contract and agree that the debt should be treated as an advancement, and it will be so treated in the settlement of the estate of the deceased father. Farmers' Exchange Bank v. Moffett, 256 Ky. 160 , 75 S.W.2d 1063, 1934 Ky. LEXIS 379 ( Ky. 1934 ).

Father and son cannot make what the law deems an advancement into a debt so that it will be treated as a debt in a settlement of the father’s estate. Farmers' Exchange Bank v. Moffett, 256 Ky. 160 , 75 S.W.2d 1063, 1934 Ky. LEXIS 379 ( Ky. 1934 ).

Where the father loaned the son a sum of money taking a note therefor which note stipulated that if it was not paid during the father’s lifetime it should be deducted from the son’s share of the father’s estate, it was an advancement to the son. Veatch's Adm'r v. Loverett, 265 Ky. 532 , 97 S.W.2d 47, 1936 Ky. LEXIS 526 ( Ky. 1936 ). See Loverett v. Veatch, 268 Ky. 797 , 105 S.W.2d 1052, 1937 Ky. LEXIS 534 ( Ky. 1937 ).

14.— Compromised Claims.

Sum of money received by son in compromise of a law suit pending between him and his father, under a contract to the effect that the son released all claims upon the estate of the father, was charged as an advancement to the son, and the contract by which the son attempted to release all claims against the estate of the father was unenforceable. Elliott v. Leslie, 124 Ky. 553 , 99 S.W. 619, 30 Ky. L. Rptr. 743 , 1907 Ky. LEXIS 212 ( Ky. 1907 ).

15.— Interest.

Provision of will charging share of one devisee with advancements to him did not include interest on the amount advanced. McGinnis v. Moore, 278 Ky. 587 , 129 S.W.2d 141, 1939 Ky. LEXIS 473 ( Ky. 1939 ).

16.— Intentions of Donor.

The intention of the donor in making a gift cannot affect the question of advancement, but it may be shown that the parent intended to make a gift. Isgrigg v. Isgrigg, 179 Ky. 260 , 200 S.W. 478, 1918 Ky. LEXIS 208 ( Ky. 1918 ).

A parent could not by a mere declaration make that an advancement which is not such by law, or prevent that from being an advancement which is made so by law. Ecton v. Flynn, 229 Ky. 476 , 17 S.W.2d 407, 1929 Ky. LEXIS 782 ( Ky. 1929 ).

If a parent conveys land to his sons, the consideration being love and affection, and the deed stipulates that the conveyance is not an advancement but is an absolute gift to the sons, it is an advancement nevertheless where the father dies intestate. Ecton v. Flynn, 229 Ky. 476 , 17 S.W.2d 407, 1929 Ky. LEXIS 782 ( Ky. 1929 ).

Although father, in conveying land to his daughter, recited that conveyance was in full satisfaction of all claims and future interests of daughter in his estate, and it was so accepted by daughter, the transaction amounted only to an advancement. Pendley v. Lee, 233 Ky. 372 , 25 S.W.2d 1030, 1930 Ky. LEXIS 571 ( Ky. 1930 ).

In determining whether a conveyance is an advancement, the intention of the decedent is not considered. Gossage v. Gossage's Adm'r, 281 Ky. 575 , 136 S.W.2d 775, 1940 Ky. LEXIS 70 ( Ky. 1940 ).

Calling a payment an advancement will not make it one; a donor cannot make that an advancement which is not made as by law. Talbott's Ex'r v. Goetz, 286 Ky. 504 , 151 S.W.2d 369, 1941 Ky. LEXIS 296 ( Ky. 1941 ).

In passing upon the competency of declarations made by an ancestor as to the intention with which a gift was made, declarations of the donor prior to the transfer or contemporaneous with it are competent, but subsequent declarations are inadmissible. Chism v. Chism, 296 Ky. 73 , 176 S.W.2d 101, 1943 Ky. LEXIS 101 ( Ky. 1943 ).

17.— Person Charged with Advancements.

Gifts to grandchildren during the lifetime of the parents are not advancements to the parents. Stevenson v. Martin, 74 Ky. 485 , 1875 Ky. LEXIS 41 ( Ky. 1875 ) (decided under prior law).

If an advancement has been made to a daughter, it is chargeable to the heirs of the daughter in the settlement of the intestate estate of the father. Frye v. Avritt, 68 S.W. 420, 24 Ky. L. Rptr. 183 , 1902 Ky. LEXIS 349 (Ky. Ct. App. 1902).

Where the father indicates a desire to deed land to his son and thereby make an advancement to him, and the son, fearing attachment from his creditors, has the father convey the land to his son, who is the grandson of the father, it is an advancement to the son and chargeable against him. Hamilton v. Moore, 70 S.W. 402, 24 Ky. L. Rptr. 982 (1902).

Advancement to decedent’s son was chargeable to son’s children, where son died before decedent. Heath v. Heath, 222 Ky. 123 , 300 S.W. 343, 1927 Ky. LEXIS 874 ( Ky. 1927 ).

A gift to a grandchild while his parent is living is not chargeable to the parent as an advancement in the settlement of the estate of the grandparent, but if the parent consents to the gift to his child, on the parent’s account, it is properly chargeable to the parent. Weddle v. Waddle's Adm'r, 261 Ky. 208 , 87 S.W.2d 383, 1935 Ky. LEXIS 628 ( Ky. 1935 ).

Cited:

Faulkner v. Tucker, 83 S.W. 579, 26 Ky. L. Rptr. 1130 (1904).

Research References and Practice Aids

Kentucky Law Journal.

Bratt, Kentucky’s Doctrine of Advancements: A Time for Reform, 75 Ky. L.J. 341 (1986-87).

391.150. Contribution.

Contributions shall take place between heirs and distributees on the same principles as between co-obligors.

History. 2080.

NOTES TO DECISIONS

1.Debts.

Where two persons became the joint purchasers of a farm and gave their joint note for $3,000, secured by a lien on the farm, and one of them died and his executor paid $1,500 on the note out of the decedent’s estate, then the other party died and in her will devised her land to her daughter, the land so devised was subject to the lien to the extent of one-half of the note and the devisee must contribute this amount to its payment. Penick v. Tribble, 160 Ky. 188 , 169 S.W. 607, 1914 Ky. LEXIS 417 ( Ky. 1914 ).

2.Lien for Contribution.

Where the personal property of the decedent was insufficient to pay debts and the heirs agreed to contribute an amount sufficient to pay the debts, and there was an infant daughter for whom money was borrowed from a bank by her guardian to pay her share, and the land was divided among the heirs, the adult heirs had a lien against the infant’s share to force her contribution to the payment of the debts. Smith's Adm'rs v. Catlin, 63 S.W. 473, 23 Ky. L. Rptr. 381 (1901).

3.Repudiation of Award.

An arbitration award was repudiated by one of the infant heirs when she became of age and resulted in one of the heirs losing one-half of the land allotted to him. This heir was entitled to recover from the other heirs and equalize the loss. Brownlee v. Bunnell, 103 S.W. 284, 31 Ky. L. Rptr. 669 (1907).

4.Ratable Charge for Indebtedness.

Where a testator makes specific devisees in his will and there is not sufficient personalty to pay the debts, the specific devises must be ratably charged, according to their value, with the payment of such remaining indebtedness, regardless of the instructions of the testator in his will. Young v. Madison's Ex'r, 252 Ky. 99 , 66 S.W.2d 1, 1933 Ky. LEXIS 987 ( Ky. 1933 ).

Research References and Practice Aids

Cross-References.

Contribution by devisees, KRS 394.420 to 394.490 .

Contributions generally, KRS Ch. 412.

391.160. Authority of life tenant to invade corpus.

  1. If
    1. A devise, bequest, or conveyance of real or personal property is made by written instrument free of any trust; and
    2. By the express terms of the instrument or by rule of law the devise, bequest or conveyance is made to a life tenant with power to consume principal or invade corpus, with the remainder to another upon the death of the life tenant; and
    3. The instrument does not expressly state the purpose for or the extent to which the life tenant may consume principal or invade corpus, then the provisions of subsection (2) shall apply.
  2. The life tenant’s power to consume principal or invade corpus shall be limited to such consumption or invasion as shall be necessary for his health, education (including college and professional education), and support in his accustomed manner of living.
  3. If
    1. A devise, bequest, or conveyance of real or personal property is made in trust by written instrument; and
    2. By the express terms of the trust instrument or by rule of law the devise, bequest or conveyance is made for the benefit of a tenant for life with power in the trustee to consume principal or invade corpus for the benefit of the life tenant, with remainder to another upon the death of the life tenant; and
    3. The instrument does not expressly state the purpose for or the extent to which the trustee may consume principal or invade corpus for the benefit of the life tenant, then the provisions of subsection (4) shall apply.
  4. The trustee’s power to consume principal or invade corpus for the benefit of the life tenant shall be limited to such consumption or invasion as shall be necessary for his health, education (including college and professional education), and support in his accustomed manner of living.

History. Enact. Acts 1974, ch. 299, § 12.

391.170. Commercial rights to use of names and likenesses of public figures.

  1. The General Assembly recognizes that a person has property rights in his name and likeness which are entitled to protection from commercial exploitation. The General Assembly further recognizes that although the traditional right of privacy terminates upon death of the person asserting it, the right of publicity, which is a right of protection from appropriation of some element of an individual’s personality for commercial exploitation, does not terminate upon death.
  2. The name or likeness of a person who is a public figure shall not be used for commercial profit for a period of fifty (50) years from the date of his death without the written consent of the executor or administrator of his estate.

History. Enact. Acts 1984, ch. 263, § 1, effective July 13, 1984.

NOTES TO DECISIONS

1.In General.

Although it may not be necessary to have attained national celebrity status in order to come within the purview of this section, it is necessary that one’s name and likeness have significant commercial value. Montgomery v. John Michael Montgomery, 1999 Ky. App. LEXIS 146 (Ky. Ct. App. Nov. 19, 1999).

Right of publicity claim against a decedent’s images in a music video was inapplicable because the fact that a person’s likeness was used in a constitutionally-protected work, a music video, to create or enhance profits did not make the use actionable, nor did the use of the likeness in an advertisement or promotion for the underlying work infringe upon a person’s right of publicity. Montgomery v. Montgomery, 60 S.W.3d 524, 2001 Ky. LEXIS 205 ( Ky. 2001 ).

Research References and Practice Aids

Northern Kentucky Law Review.

Elder, Kentucky Defamation and Privacy Law — The Last Decade, 23 N. Ky. L. Rev. 231 (1996).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Invasion of Privacy Torts, § 128.00.

Disposition of Community Property Rights at Death

391.210. Application.

KRS 391.210 to 391.260 applies to the disposition at death of the following property acquired by a married person:

  1. All personal property, wherever situated:
    1. Which was acquired as or became, and remained, community property under the laws of another jurisdiction; or
    2. All or the proportionate part of that property acquired with the rents, issues, or income of, or the proceeds from, or in exchange for, that community property; or
    3. Traceable to that community property;
  2. All or the proportionate part of any real property situated in this state which was acquired with the rents, issues or income of, the proceeds from, or in exchange for, property acquired as or which became, and remained, community property under the laws of another jurisdiction, or property traceable to that community property.

History. Enact. Acts 1974, ch. 328, § 1(1).

Research References and Practice Aids

Comparative Legislation.

Uniform Disposition of Community Property Rights at Death Act.

Va. Code 1950. §§ 64-1-197 — 64-1-206.

Kentucky Law Journal.

Comments, The Uniform Disposition of Community Property Rights at Death Act, 65 Ky. L.J. 541 (1976-77).

391.215. Rebuttable presumptions.

In determining whether KRS 391.210 to 391.260 applies to specific property the following rebuttable presumptions apply:

  1. Property acquired during marriage by a spouse of that marriage while domiciled in a jurisdiction under whose laws property could then be acquired as community property is presumed to have been acquired as or to have become, and remained, property to which KRS 391.210 to 391.260 applies; and
  2. Real property situated in this Commonwealth and personal property wherever situated acquired by a married person while domiciled in a jurisdiction under whose laws property could not then be acquired as community property, title to which was taken in a form which created rights of survivorship, is presumed not to be property to which KRS 391.210 to 391.260 applies.

History. Enact. Acts 1974, ch. 328, § 1(2).

Research References and Practice Aids

Kentucky Law Journal.

Comments, The Uniform Disposition of Community Property Rights at Death Act, 65 Ky. L.J. 541 (1976-77).

391.220. Disposition upon death.

Upon death of a married person, one-half (1/2) of the property to which KRS 391.210 to 391.260 applies is the property of the surviving spouse and is not subject to testamentary disposition by the decedent or distribution under the laws of succession of this Commonwealth. One-half (1/2) of that property is the property of the decedent and is subject to testamentary disposition or distribution under the laws of succession of this Commonwealth. With respect to property to which KRS 391.210 to 391.260 applies, the one-half (1/2) of the property which is the property of the decedent is not subject to the surviving spouse’s right to elect against the will.

History. Enact. Acts 1974, ch. 328, § 1(3).

Research References and Practice Aids

Kentucky Law Journal.

Comments, The Uniform Disposition of Community Property Rights at Death Act, 65 Ky. L.J. 541 (1976-77).

391.225. Perfection of title of surviving spouse.

If the title to any property to which KRS 391.210 to 391.260 applies was held by the decedent at the time of death, title of the surviving spouse may be perfected by an order of the probate court or by execution of an instrument by the personal representative or the heirs or devisees of the decedent with the approval of the probate court. Neither the personal representative nor the court in which the decedent’s estate is being administered has a duty to discover or attempt to discover whether property held by the decedent is property to which KRS 391.210 to 391.260 applies, unless a written demand is made by the surviving spouse or the spouse’s successor in interest.

History. Enact. Acts 1974, ch. 328, § 1(4).

Research References and Practice Aids

Kentucky Law Journal.

Comments, The Uniform Disposition of Community Property Rights at Death Act, 65 Ky. L.J. 541 (1976-77).

391.230. Perfection of title of personal representative, heir, or devisee.

If the title to any property to which KRS 391.210 to 391.260 applies is held by the surviving spouse at the time of the decedent’s death, the personal representative or an heir or devisee of the decedent may institute an action to perfect title to the property. The personal representative has no fiduciary duty to discover or attempt to discover whether any property held by the surviving spouse is property to which KRS 391.210 to 391.260 applies, unless a written demand is made by an heir, devisee, or creditor of the decedent.

History. Enact. Acts 1974, ch. 328, § 1(5).

Research References and Practice Aids

Kentucky Law Journal.

Comments, The Uniform Disposition of Community Property Rights at Death Act, 65 Ky. L.J. 541 (1976-77).

391.235. Purchaser for value or lender.

If a surviving spouse has apparent title to property to which KRS 391.210 to 391.260 applies, a purchaser for value or a lender taking a security interest in the property takes his interest in the property free of any rights of the personal representative or an heir or devisee of the decedent. If a personal representative or an heir or devisee of the decedent has apparent title to property to which KRS 391.210 to 391.260 applies, a purchaser for value or a lender taking a security interest in the property takes his interest in the property free of any rights of the surviving spouse. A purchaser for value or a lender need not inquire whether a vendor or borrower acted properly. The proceeds of a sale or creation of a security interest shall be treated in the same manner as the property transferred to the purchaser for value or a lender.

History. Enact. Acts 1974, ch. 328, § 1(6).

Research References and Practice Aids

Kentucky Law Journal.

Comments, The Uniform Disposition of Community Property Rights at Death Act, 65 Ky. L.J. 541 (1976-77).

391.240. Creditors’ rights.

KRS 391.210 to 391.260 does not affect rights of creditors with respect to property to which KRS 391.210 to 391.260 applies.

History. Enact. Acts 1974, ch. 328, § 1(7).

Research References and Practice Aids

Kentucky Law Journal.

Comments, The Uniform Disposition of Community Property Rights at Death Act, 65 Ky. L.J. 541 (1976-77).

391.245. Acts of married persons.

KRS 391.210 to 391.260 does not prevent married persons from severing or altering their interests in property to which KRS 391.210 to 391.260 applies.

History. Enact. Acts 1974, ch. 328, § 1(8).

Research References and Practice Aids

Kentucky Law Journal.

Comments, The Uniform Disposition of Community Property Rights at Death Act, 65 Ky. L.J. 541 (1976-77).

391.250. Limitations on testamentary disposition.

KRS 391.210 to 391.260 does not authorize a person to dispose of property by will if it is held under limitations imposed by law preventing testamentary disposition by that person.

History. Enact. Acts 1974, ch. 328, § 1(9).

Research References and Practice Aids

Kentucky Law Journal.

Comments, The Uniform Disposition of Community Property Rights at Death Act, 65 Ky. L.J. 541 (1976-77).

391.255. Uniformity of application and construction.

KRS 391.210 to 391.260 shall be so applied and construed as to effectuate the general purpose to make uniform the law with respect to the subject of KRS 391.210 to 391.260 among those states which enact it.

History. Enact. Acts 1974, ch. 328, § 1(10).

Research References and Practice Aids

Kentucky Law Journal.

Comments, The Uniform Disposition of Community Property Rights at Death Act, 65 Ky. L.J. 541 (1976-77).

391.260. Title.

KRS 391.210 to 391.260 may be cited as the Uniform Disposition of Community Property Rights at Death Act.

History. Enact. Acts 1974, ch. 328, § 1(11).

Research References and Practice Aids

Kentucky Law Journal.

Comments, The Uniform Disposition of Community Property Rights at Death Act, 65 Ky. L.J. 541 (1976-77).

Multiple Party Accounts

391.300. Definitions.

As used in KRS 391.305 to 391.360 , unless the context otherwise requires:

  1. “Account” means a contract of deposit of funds between a depositor and a financial institution, and includes a checking account, savings account, certificate of deposit, share account and other like arrangement;
  2. “Beneficiary” means a person named in a trust account as one for whom a party to the account is named as trustee;
  3. “Financial institution” means any organization authorized to do business under state or federal laws relating to financial institutions, including, without limitation, banks and trust companies, savings banks, building and loan associations, savings and loan companies or associations, and credit unions;
  4. “Joint account” means an account payable on request to one (1) or more of two (2) or more parties whether or not mention is made of any right of survivorship;
  5. A “multiple-party account” is any of the following types of account: (i) a joint account, (ii) a P.O.D. account, or (iii) a trust account. It does not include accounts established for deposit of funds of a partnership, joint venture, or other association for business purposes, or accounts controlled by one (1) or more persons as the duly authorized agent or trustee for a corporation, unincorporated association, charitable or civic organization or a regular fiduciary or trust account where the relationship is established other than by deposit agreement;
  6. “Net contribution” of a party to a joint account as of any given time is the sum of all deposits thereto made by or for him, less all withdrawals made by or for him which have not been paid to or applied to the use of any other party, plus a pro rata share of any interest or dividends included in the current balance. The term includes, in addition, any proceeds of deposit life insurance added to the account by reason of the death of the party whose net contribution is in question;
  7. “Party” means a person who, by the terms of the account, has subject to request, a present right, exercisable alone or jointly with one (1) or more other parties, to payment from a multiple-party account. A P.O.D. payee or beneficiary of a trust account is a party only after the account becomes payable to him by reason of his surviving the original payee or trustee. Unless the context otherwise requires, it includes a guardian, conservator, personal representative, or assignee, including an attaching creditor, of a party. It also includes a person identified as a trustee of an account for another whether or not a beneficiary is named, but it does not include any named beneficiary unless he has a present right of withdrawal;
  8. “Payment” of sums on deposit includes withdrawal, payment on check or other directive of a party, and any pledge of sums on deposit by a party and any set-off, or reduction or other disposition of all or part of an account pursuant to a pledge;
  9. “Proof of death” includes a death certificate or record or report which is prima facie proof of death;
  10. “P.O.D. account” means an account payable on request to one (1) person during lifetime and on his death to one (1) or more P.O.D. payees, or to one (1) or more persons during their lifetimes and on the death of all of them to one (1) or more P.O.D. payees;
  11. “P.O.D. payee” means a person designated on a P.O.D. account as one to whom the account is payable on request after the death of one (1) or more persons;
  12. “Request” means a proper request for withdrawal, or a check or order for payment, which complies with all conditions of the account, including special requirements concerning the necessary signature or number of signatures of the parties to the account which may be required for a proper request and regulations of the financial institution; but if the financial institution conditions withdrawal or payment on advance notice, for purposes of KRS 391.305 to 391.360 , the request for withdrawal or payment is treated as immediately effective and a notice of intent to withdraw is treated as a request for withdrawal;
  13. “Sums on deposit” means the balance payable on a multiple-party account including interest, dividends, and in addition any deposit life insurance proceeds added to the account by reason of the death of a party;
  14. “Trust account” means an account in the name of one (1) or more parties as trustee for one (1) or more beneficiaries where the relationship is established by the form of the account and the deposit agreement with the financial institution and there is no subject of the trust other than the sums on deposit in the account; it is not essential that payment to the beneficiary be mentioned in the deposit agreement. A trust account does not include a regular trust account under a testamentary trust or a trust agreement which has significance apart from the account, or a fiduciary account arising from a fiduciary relation such as attorney-client;
  15. “Withdrawal” includes payment to a third person pursuant to check or other directive of a party;
  16. A financial institution “receives” an order or notice under KRS 391.305 to 391.360 when it is duly delivered at the place of business at which the multiple-party account was originally established or at any other place held out by the financial institution as the place for receipt of such communication.

History. Enact. Acts 1976, ch. 218, § 26.

NOTES TO DECISIONS

1.Account.

A safe deposit box is not an “account” or “other like arrangement” pursuant to subsection (1) of this section entitling the surviving party to the balance. James v. Webb, 827 S.W.2d 702, 1991 Ky. App. LEXIS 149 (Ky. Ct. App. 1991).

2.Brokerage Accounts.

Brokerage accounts are not governed by the Multiple Party Account provisions of KRS Chapter 391, KRS 391.300 - 391.355 . Spencer v. Estate of Spencer, 313 S.W.3d 534, 2010 Ky. LEXIS 154 ( Ky. 2010 ).

Brokerage firms are not sufficiently bank-like to be deemed “financial institutions,” and brokerage accounts, or securities accounts, do not fit comfortably within the concept of a “deposit of funds” and thus do not qualify as “accounts” for purposes of KRS 391.315 . Spencer v. Estate of Spencer, 313 S.W.3d 534, 2010 Ky. LEXIS 154 ( Ky. 2010 ).

Cited:

Herren v. Cochran, 697 S.W.2d 149, 1985 Ky. App. LEXIS 589 (Ky. Ct. App. 1985); Pulliam v. Pulliam, 738 S.W.2d 846, 1987 Ky. App. LEXIS 588 (Ky. Ct. App. 1987).

Opinions of Attorney General.

Payments of a jointly owned bank account to the joint survivor, disbursement of remaining funds in a P.O.D. account to the surviving payee, or disbursement of remaining funds in a trust account to beneficiaries can only be made upon a written waiver from the Department of Revenue. OAG 76-501 .

Research References and Practice Aids

Northern Kentucky Law Review.

Calvert, Probate Law, 21 N. Ky. L. Rev. 367 (1994).

391.305. Ownership as between parties and others — Protection of financial institutions.

The provisions of KRS 391.310 to 391.320 concerning beneficial ownership as between parties, or as between parties and P.O.D. payees or beneficiaries of multiple-party accounts, are relevant only to controversies between these persons and their creditors and other successors, and have no bearing on the power of withdrawal of these persons as determined by the terms of account contracts. The provisions of KRS 391.335 to 391.360 govern the liability of financial institutions who make payments pursuant thereto, and their set-off rights.

History. Enact. Acts 1976, ch. 218, § 27.

NOTES TO DECISIONS

1.Ownership of Safe Deposit Box.

A typical contract for the rental of a safe deposit box shall govern only the access to the box and not ownership of the contents unless there is an express agreement otherwise and the law so allows. James v. Webb, 827 S.W.2d 702, 1991 Ky. App. LEXIS 149 (Ky. Ct. App. 1991).

Research References and Practice Aids

Kentucky Law Journal.

Graham, Starting Down the Road to Reform: Kentucky’s New Long-Arm Statute for Family Obligations, 81 Ky. L.J. 585 (1992-93).

391.310. Ownership during lifetime.

  1. A joint account belongs, during the lifetime of all parties, to the parties in proportion to the net contributions by each to the sums on deposit, unless there is clear and convincing evidence of a different intent.
  2. A P.O.D. account belongs to the original payee during his lifetime and not to the P.O.D. payee or payees; if two (2) or more parties are named as original payees, during their lifetimes rights as between them are governed by subsection (1) of this section.
  3. Unless a contrary intent is manifested by the terms of the account or the deposit agreement or there is other clear and convincing evidence of an irrevocable trust, a trust account belongs beneficially to the trustee during his lifetime, and if two (2) or more parties are named as trustee on the account, during their lifetimes beneficial rights as between them are governed by subsection (1) of this section. If there is an irrevocable trust, the account belongs beneficially to the beneficiary.

History. Enact. Acts 1976, ch. 218, § 28.

NOTES TO DECISIONS

1.Ownership.

A party to a joint account may, for attachment and execution purposes, initially be presumed to own the entire joint account; however, upon notice and objection, the debtor or any third-party account tenant may rebut that presumption by proof of separate net contributions to the account and an intention that the non-contributor’s use of the other’s contributions be limited. Brown v. Commonwealth, 40 S.W.3d 873, 1999 Ky. App. LEXIS 126 (Ky. Ct. App. 1999).

Cited:

Herren v. Cochran, 697 S.W.2d 149, 1985 Ky. App. LEXIS 589 (Ky. Ct. App. 1985); Barnett v. Cmty. Trust Bank, Inc., — S.W.3d —, 2009 Ky. App. LEXIS 252 (Ky. Ct. App. 2009).

391.315. Right of survivorship.

    1. Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties to the account as against the estate of the decedent unless there is clear and convincing written evidence of a different intention at the time the account is created. If there are two or more surviving parties their respective ownerships during lifetime shall be in proportion to their previous ownership interests under KRS 391.310 augmented by an equal share for each survivor of any interest the decedent may have owned in the account immediately before his death; and the right of survivorship continues between the surviving parties.
    2. In transferring or releasing joint account funds subsequent to the date of death of one (1) or more of the named joint account holders, a financial institution or other appropriate third party may rely conclusively on the form and terms of the account to pay in accordance with paragraph (a) of this subsection. The transfer or release of those joint account funds has no bearing on the actual rights of ownership of the funds as between the surviving party or parties to the account and the dower or curtesy interest of any surviving spouse. The transfer or release by a financial institution or third party in accordance with this section shall constitute a full release and discharge of the financial institution or third party from all claims relating to ownership.
  1. If the account is a P.O.D. account, on death of the original payee or of the survivor of two or more original payees, any sums remaining on deposit belong to the P.O.D. payee or payees if surviving, or to the survivor of them if one or more die before the original payee; if two or more P.O.D. payees survive, there is no right of survivorship in event of death of a P.O.D. payee thereafter unless the terms of the account or deposit agreement expressly provide for survivorship between them.
  2. If the account is a trust account, on death of the trustee or the survivor of two or more trustees, any sums remaining on deposit belong to the person or persons named as beneficiaries, if surviving, or to the survivor of them if one or more die before the trustee, unless there is clear and convincing evidence of a contrary intent; if two or more beneficiaries survive, there is no right of survivorship in event of death of any beneficiary thereafter unless the terms of the account or deposit agreement expressly provide for survivorship between them.
  3. In other cases, the death of any party to a multiple-party account has no effect on beneficial ownership of the account other than to transfer the rights of the decedent as part of his estate.
  4. A right of survivorship arising from the express terms of the account or under this section, a beneficiary designation in a trust account, or a P.O.D. payee designation, cannot be changed by will.

History. Enact. Acts 1976, ch. 218, § 29; 1998, ch. 196, § 24, effective July 15, 1998.

NOTES TO DECISIONS

1.Provisions of KRS 392.020.

No statute has expressly repealed the provisions of KRS 392.020 and the Supreme Court does not find any conflict between KRS 392.020 and this section such that this section can be said by implication to repeal KRS 392.020. Harris v. Rock, 799 S.W.2d 10, 1990 Ky. LEXIS 95 ( Ky. 1990 ).

2.Joint Account.

It is true that this section provides that funds deposited into a joint account belong to the survivor as against the estate of the decedent upon the death of the other party to the account, but this is subject to a statutory limitation that the funds do not become the property of the survivor if there is clear and convincing evidence of a different intention at the time the account was created; there is also another limitation, necessarily implied in law, that the survivor of parties to a joint account cannot become the owner of the funds in the account upon the death of the other party if the party who deposited the funds was not legally entitled to dispose of them in such a manner. Harris v. Rock, 799 S.W.2d 10, 1990 Ky. LEXIS 95 ( Ky. 1990 ).

Bank rules for joint bank accounts provided that the accounts were with right of survivorship, and thus there was no evidence to overcome the presumption in Ky. Rev. Stat. Ann. § 391.315(1)(a) that the account was a joint account with right of survivorship; consequently, the widow could legally close the account as the sole owner upon her husband’s death. Wheeler v. Layton, 617 S.W.3d 830, 2021 Ky. App. LEXIS 7 (Ky. Ct. App. 2021).

3.Dower Claims.

While this section is a perfectly appropriate statute to settle a dispute between the estate of a decedent and the surviving party to the joint account when there is no clear and convincing evidence of the intent of the parties at the time the account was opened, it is not an appropriate statute to accomplish a transfer of ownership of funds as to which the depositor into the account had no right of disposition; most certainly, a deposit into a joint account cannot defeat the right to recover the funds so deposited by one who has a legal claim of ownership thereof, such as a dower claim. Harris v. Rock, 799 S.W.2d 10, 1990 Ky. LEXIS 95 ( Ky. 1990 ).

4.Safe Deposit Box.

A safe deposit box is not an “account” or “other like arrangement” pursuant to KRS 391.300(1) entitling the surviving party to the balance. James v. Webb, 827 S.W.2d 702, 1991 Ky. App. LEXIS 149 (Ky. Ct. App. 1991).

A typical contract for the rental of a safe deposit box shall govern only the access to the box and not ownership of the contents unless there is an express agreement otherwise and the law so allows. James v. Webb, 827 S.W.2d 702, 1991 Ky. App. LEXIS 149 (Ky. Ct. App. 1991).

5.Certificates of Deposit.

Where certificates of deposit were payable in the alternative because of the inclusion of “or” on their faces and were thus negotiable, decedent who had possession of such certificates could demand and receive payment for them during her life and could pledge them as collateral for bank loans and that pledge continued as long as the loans remained unpaid and the pledgee bank retained possession; therefore when decedent defaulted on her loans, pledgee bank had a right superior to the alternative payee to liquidate the certificates as it would have had to dispose of any other type of collateral. Farmers Bank & Trust Co. v. Brazell, 902 S.W.2d 830, 1995 Ky. App. LEXIS 27 (Ky. Ct. App. 1995).

6.Brokerage Firms.

Brokerage firms are not sufficiently bank-like to be deemed “financial institutions,” and brokerage accounts, or securities accounts, do not fit comfortably within the concept of a “deposit of funds” and thus do not qualify as “accounts” for purposes of KRS 391.315 . Spencer v. Estate of Spencer, 313 S.W.3d 534, 2010 Ky. LEXIS 154 ( Ky. 2010 ).

Brokerage accounts are not governed by the Multiple Party Account provisions of KRS Chapter 391, KRS 391.300 - 391.355 . Spencer v. Estate of Spencer, 313 S.W.3d 534, 2010 Ky. LEXIS 154 ( Ky. 2010 ).

Cited:

Herren v. Cochran, 697 S.W.2d 149, 1985 Ky. App. LEXIS 589 (Ky. Ct. App. 1985); Barnett v. Cmty. Trust Bank, Inc., 2009 Ky. App. LEXIS 252 (Ky. Ct. App. Dec. 18, 2009); Keith v. Cross, 636 S.W.3d 842, 2021 Ky. App. LEXIS 115 (Ky. Ct. App. 2021).

Opinions of Attorney General.

Payments of a jointly owned bank account to the joint survivor, disbursement of remaining funds in a P.O.D. account to the surviving payee, or disbursement of remaining funds in a trust account to beneficiaries can only be made upon a written waiver from the Department of Revenue. OAG 76-501 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Whiteside and Harman, Kentucky Taxation, 67 Ky. L.J. 739 (1978-79).

Muyskens, Married in Kentucky: A Surviving Spouse’s Dower Right in Personalty, 96 Ky. L.J. 99 (2007).

Northern Kentucky Law Review.

Calvert, Probate Law, 21 N. Ky. L. Rev. 367 (1994).

Treatises

Petrilli, Kentucky Family Law, 1991 Supp., Personal Rights and Privileges Resulting from Marriage, § 12.6.

391.320. Effect of written notice to financial institution.

The provisions of KRS 391.315 as to rights of survivorship are determined by the form of the account at the death of a party. This form may be altered by written order from any party able to request present payment without the joinder of any other party given to the financial institution to change the form of the account or to stop or vary payment under the terms of the account. The order must be signed by said party, received by the financial institution during the party’s lifetime, and not countermanded by other written order of the same party during his lifetime.

History. Enact. Acts 1976, ch. 218, § 30.

391.325. Accounts and transfers nontestamentary.

Any transfers resulting from the application of KRS 391.315 are effective by reason of the account contracts involved and this statute and are not to be considered as testamentary.

History. Enact. Acts 1976, ch. 218, § 31.

NOTES TO DECISIONS

Cited:

Herren v. Cochran, 697 S.W.2d 149, 1985 Ky. App. LEXIS 589 (Ky. Ct. App. 1985).

391.330. Payment on signature of one party.

Financial institutions may enter into multiple-party accounts to the same extent that they may enter into single-party accounts. Any multiple-party account may be paid, on request to any one (1) or more of the parties. A financial institution shall not be required to inquire as to the source of funds received for deposit to a multiple-party account, or to inquire as to the proposed application of any sum withdrawn from an account, for purposes of establishing net contributions.

History. Enact. Acts 1976, ch. 218, § 32.

NOTES TO DECISIONS

1.Negligence.

The bank was not negligent in failing to inquire of the joint owner if he had the certificates of deposit when the executrix of the other joint owner claimed the certificates were lost and requested that the joint owner’s name be deleted therefrom. Pulliam v. Pulliam, 738 S.W.2d 846, 1987 Ky. App. LEXIS 588 (Ky. Ct. App. 1987).

Summary judgment was improper in a joint depositor’s suit against a bank for negligence and breach of contract for wrongly removing the depositor’s name from a jointly-owned CD and then distributing the funds to another because the depositor’s evidence entitled the depositor to a day in court on the bank’s alleged breach of its duty of care; although banks had no legal duty under KRS 391.330 to inquire of or inform one joint depositor about actions taken by another joint owner, the general standard of care owed by banks presumed that bank employees would attempt to verify ownership of financial instruments prior to engaging in transactions involving those instruments. Barnett v. Cmty. Trust Bank, Inc., 2009 Ky. App. LEXIS 252 (Ky. Ct. App. Dec. 18, 2009).

391.335. Payment after death or disability.

Any sums in a joint account may be paid, on request, to any party without regard to whether any other party is incapacitated or deceased at the time the payment is demanded; but payment may not be made to the personal representative or heirs of a deceased party unless proof of death is presented to the financial institution showing that the decedent was the last surviving party or unless there is no right of survivorship under KRS 391.315 .

History. Enact. Acts 1976, ch. 218, § 33.

Opinions of Attorney General.

Payments of a jointly owned bank account to the joint survivor, disbursement of remaining funds in a P.O.D. account to the surviving payee, or disbursement of remaining funds in a trust account to beneficiaries can only be made upon a written waiver from the Department of Revenue. OAG 76-501 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Whiteside and Harman, Kentucky Taxation, 67 Ky. L.J. 739 (1978-79).

391.340. Payment of P.O.D. account.

Any P.O.D. account may be paid, on request, to any original party to the account. Payment may be made, on request, to the P.O.D. payee or to the personal representative or heirs of a deceased P.O.D. payee upon presentation to the financial institution of proof of death showing that the P.O.D. payee survived all persons named as original payees. Payment may be made to the personal representative or heirs of a deceased original payee if proof of death is presented to the financial institution showing that the deceased original payee was the survivor of all other persons named on the account either as an original payee or as P.O.D. payee.

History. Enact. Acts 1976, ch. 218, § 34.

391.345. Payment of trust account.

Any trust account may be paid, on request, to any trustee. Unless the financial institution has received written notice that the beneficiary has a vested interest not dependent upon his surviving the trustee, payment may be made to the personal representative or heirs of a deceased trustee if proof of death is presented to the financial institution showing that the deceased trustee was the survivor of all other persons named on the account either as trustee or beneficiary. Payment may be made, on request, to the beneficiary upon presentation to the financial institution of proof of death showing that the beneficiary or beneficiaries survived all persons named as trustees.

History. Enact. Acts 1976, ch. 218, § 35.

391.350. Discharge.

Payment made pursuant to KRS 391.330 to 391.345 discharges the financial institution from all claims for amounts so paid whether or not the payment is consistent with the beneficial ownership of the account as between parties, P.O.D. payees, or beneficiaries, or their successors. The protection here given does not extend to payments made after a financial institution has received written notice from any party to the effect that withdrawals in accordance with the terms of the account should not be permitted. Unless the notice is withdrawn by the person giving it, any other party to the account and the successor of any deceased party must concur in any demand for withdrawal if the financial institution is to be protected under this section. No other notice or any other information shown to have been available to a financial institution shall affect its right to the protection provided here. The protection here provided shall have no bearing on the rights of parties in disputes between themselves or their successors concerning the beneficial ownership of funds in, or withdrawn from, multiple-party accounts.

History. Enact. Acts 1976, ch. 218, § 36.

NOTES TO DECISIONS

1.Negligence.

Summary judgment was improper in a joint depositor’s suit against a bank for negligence and breach of contract for wrongly removing the depositor’s name from a jointly-owned CD and then distributing the funds to another because the depositor’s evidence entitled the depositor to a day in court on the bank’s alleged breach of its duty of care; although banks had no legal duty under KRS 391.330 to inquire of or inform one joint depositor about actions taken by another joint owner, the general standard of care owed by banks presumed that bank employees would attempt to verify ownership of financial instruments prior to engaging in transactions involving those instruments. Barnett v. Cmty. Trust Bank, Inc., 2009 Ky. App. LEXIS 252 (Ky. Ct. App. Dec. 18, 2009).

391.355. Set-off.

Without qualifying any common law or any other statutory right to set-off or lien and subject to any contractual provision, if a party to a multiple-party account is indebted to a financial institution, the financial institution has a right to set-off against the account in which the party has or had immediately before his death a present right of withdrawal without the joinder of any other party. The amount of the account subject to set-off is that proportion to which the debtor is, or was immediately before his death, beneficially entitled, and in the absence of actual knowledge of net contributions by the financial institution, to an equal share with all parties having present rights of withdrawal without the joinder of any other party.

History. Enact. Acts 1976, ch. 218, § 37.

Provisions Relating to Effect of Death

391.360. Written provisions for nonprobate transfer on death.

  1. A written provision for a nonprobate transfer on death in an insurance policy, contract of employment, bond, mortgage, promissory note, certified or uncertified security account agreement, custodial agreement, deposit agreement, compensation plan, pension plan, individual retirement plan, employee benefit plan, trust, conveyance, deed of gift, marital property agreement, or other written instrument of a similar nature is nontestamentary. These written provisions shall include, but not be limited to, written provisions which provide that:
    1. Money or other benefits due to, controlled, or owned by a decedent before death shall be paid after the decedent’s death to a person whom the decedent designates either in the instrument or in a separate writing, including a will, executed before, at the same time, or after the instrument is executed;
    2. Money due or to become due under the instrument shall cease to be payable in the event of the death of the promisee or the promissor before payment or demand; or
    3. Any property, controlled by or owned by the decedent before death, which is the subject of the instrument shall pass to a person the decedent designates either in the instrument or in a separate writing, including a will, executed before, at the same time, or after the instrument is executed.
  2. This section shall not limit the rights of creditors under other laws of this state.

History. Enact. Acts 1976, ch. 218, § 38; 1998, ch. 415, § 11, effective July 15, 1998.

NOTES TO DECISIONS

1.Change of Beneficiaries.

Summary judgment for the designated beneficiaries of the decedent's Individual Retirement Account (IRA) was appropriate because the decedent did not attempt to change the designated beneficiaries in the IRA as required by the IRA contract though use of the form provided by the manager of the IRA. The fact that the decedent executed a later will that did not include the beneficiaries as beneficiaries of the decedent's probate estate was not significant. Haste v. Vanguard Grp., Inc., 502 S.W.3d 611, 2016 Ky. App. LEXIS 104 (Ky. Ct. App. 2016).

Cited in:

Keith v. Cross, 636 S.W.3d 842, 2021 Ky. App. LEXIS 115 (Ky. Ct. App. 2021).

Research References and Practice Aids

Kentucky Bench & Bar.

Morris, Estate Planning for Retirement Benefits, Volume 74, No. 6, November 2010, Ky. Bench & Bar 14.

CHAPTER 392 Dower and Curtesy

392.010. Husband’s interest in wife’s realty same as wife’s interest in his.

All the sections of this chapter, except KRS 392.100 , that relate to the wife’s dower or interest in the deceased husband’s estate, shall apply in all cases, so far as may be, to the husband’s interest in the wife’s estate.

History. 2148: amend. Acts 1956, ch. 117, § 1.

NOTES TO DECISIONS

1.Quarantine.

The surviving husband is entitled to the privilege of quarantine. Johnson v. Ducobu, 251 S.W.2d 992, 1952 Ky. LEXIS 954 ( Ky. 1952 ).

Cited:

Beach v. Hopperton’s Ex’r, 303 Ky. 272 , 196 S.W.2d 894, 1946 Ky. LEXIS 789 ( Ky. 1946 ); Reynolds v. McGuire, 253 S.W.2d 386, 1952 Ky. LEXIS 1089 ( Ky. 1952 ).

Research References and Practice Aids

Cross-References.

Escheat, property of intestate dying without heirs subject to, KRS 393.020 .

General Assembly not to pass special acts changing law of descent, distribution and succession, Const., § 59, Eighth.

Homestead exemptions, KRS 427.060 to 427.100 .

No right to entirety by survivorship unless such right expressly provided for, KRS 381.050 .

Wife may sell real estate without husband’s jointure, but husband must join to bar curtesy, KRS 404.030 .

Kentucky Law Journal.

Vahlsing and Hudson, Inchoate Dower — An Idea Whose Time Is Past, 60 Ky. L.J. 671 (1972).

Bratt, Family Protection Under Kentucky’s Inheritance Laws: Is the Family Really Protected? 76 Ky. L.J. 387 (1987-88).

Northern Kentucky Law Forum.

Levy, Vestiges of Sexism in Ohio and Kentucky Property Law: A Case of De Facto Discrimination, 1 N. Ky. St. L.F. 193 (1973).

Northern Kentucky Law Review.

Schneider, A Kentucky Study of Will Provisions: Implications for Intestate Succession Law, 13 N. Ky. L. Rev. 409 (1987).

Treatises

Petrilli, Kentucky Family Law, Status of Wife, § 11.2.

392.020. Surviving spouse’s interest in property of deceased spouse — “Dower” and “curtesy” defined.

After the death of the husband or wife intestate, the survivor shall have an estate in fee of one-half (1/2) of the surplus real estate of which the other spouse or anyone for the use of the other spouse, was seized of an estate in fee simple at the time of death, and shall have an estate for his or her life in one-third (1/3) of any real estate of which the other spouse or anyone for the use of the other spouse, was seized of an estate in fee simple during the coverture but not at the time of death, unless the survivor’s right to such interest has been barred, forfeited or relinquished. The survivor shall also have an absolute estate in one-half (1/2) of the surplus personalty left by the decedent. Unless the context otherwise requires, any reference in the statutes of this state to “dower” or “curtesy” shall be deemed to refer to the surviving spouse’s interest created by this section.

History. 2132: amend. Acts 1956, ch. 117, § 2.

NOTES TO DECISIONS

1.Purpose.

The purpose of this section was to put the husband in the same position as was enjoyed by the surviving wife prior to its enactment. This section places them on the same plane. Brand Ex'r v. Brand, 109 Ky. 721 , 60 S.W. 704, 22 Ky. L. Rptr. 1366 , 1901 Ky. LEXIS 36 ( Ky. 1901 ). See Irvine v. Gibson, 117 Ky. 306 , 77 S.W. 1106, 25 Ky. L. Rptr. 1418 , 1904 Ky. LEXIS 179 ( Ky. 1904 ).

The purpose of the dower statute is to insure that a surviving spouse will not be left disinherited and destitute; but it was not meant to utterly destroy the testator’s ability to give and devise his property as he desires so long as the spouse was provided for. Hannah v. Hannah, 824 S.W.2d 866, 1992 Ky. LEXIS 14 ( Ky. 1992 ).

2.Effect of KRS 391.020.

The ancestral property statute (KRS 391.020 ) does not supersede, limit, or override the rights of dower or curtesy by a surviving spouse under this section. Francis v. Justice, 687 S.W.2d 868, 1985 Ky. App. LEXIS 557 (Ky. Ct. App. 1985).

3.Effect of KRS 391.315.

No statute has expressly repealed the provisions of this section, and the Supreme Court does not find any conflict between this section and KRS 391.315 such that the latter statute can be said by implication to repeal this section. Harris v. Rock, 799 S.W.2d 10, 1990 Ky. LEXIS 95 ( Ky. 1990 ).

4.Dower.

Widow was entitled to dower in land which was devised to the use of her husband and at his death to his descendants and distributees. Jacob v. Jacob, 67 Ky. 110 , 1868 Ky. LEXIS 89 ( Ky. 1868 ) (decided under prior law). See Johnson v. Jacob, 74 Ky. 646 , 1876 Ky. LEXIS 15 ( Ky. 1876 ) (decided under prior law).

To entitle the surviving spouse to dower the other must not only have been seized of the fee simple title to the land during coverture, but also he or she must have been entitled to the beneficial use and possession. Rivers v. Morris, 78 S.W. 196, 25 Ky. L. Rptr. 1416 (1904).

The test of the widow’s right to dower is: Was the husband seized of an estate in fee simple during coverture, and did he have the right of possession? Ferguson v. Ferguson, 153 Ky. 742 , 156 S.W. 413, 1913 Ky. LEXIS 921 ( Ky. 1913 ).

The right of dower is an interest in property, not a lien, and not subject to the debts of the husband. Maryland Casualty Co. v. Lewis, 276 Ky. 263 , 124 S.W.2d 48, 1939 Ky. LEXIS 509 ( Ky. 1939 ).

Dower is a vested right which vests at the time of marriage in property then owned by the husband and at the time of acquisition in subsequently acquired property. Maryland Casualty Co. v. Lewis, 276 Ky. 263 , 124 S.W.2d 48, 1939 Ky. LEXIS 509 ( Ky. 1939 ).

Deed by husband conveying homestead to another, though not signed by wife, effectively bars wife from claiming homestead right after husband’s death, and she has only her right of dower in the land, which she may assert at any time during her lifetime. Pugh v. Pugh, 279 Ky. 170 , 130 S.W.2d 40, 1939 Ky. LEXIS 253 ( Ky. 1939 ).

The right of dower vests at the time of marriage or at time of acquisition of subsequently acquired property, and is a vested interest which can be released or relinquished only in manner provided for disposal of real property. Wigginton v. Leech's Adm'x, 285 Ky. 787 , 149 S.W.2d 531, 1941 Ky. LEXIS 472 ( Ky. 1941 ).

A wife’s right of dower in property acquired by her husband subsequent to the marriage vests at the time the title is vested in her husband. Brown v. Ingram's Ex'x, 292 Ky. 703 , 168 S.W.2d 31, 1943 Ky. LEXIS 742 ( Ky. 1943 ).

Technically, the term “dower” standing alone refers only to an interest in realty, but when used in a will it may also relate to widow’s share of personalty, depending upon the maker’s intent. Swearingen v. Swearingen's Ex'x, 302 Ky. 107 , 194 S.W.2d 79, 1946 Ky. LEXIS 616 ( Ky. 1946 ).

The inchoate right under this section of one spouse in the realty of the other attaches at the moment the other spouse becomes seized in fee simple during coverture, and such attachment is not prevented by KRS 404.010 . Faulkner v. Terrell, 287 S.W.2d 409, 1956 Ky. LEXIS 453 ( Ky. 1956 ).

A wife’s inchoate dower is a substantial right which comes into existence at the time of marriage or later acquisition of real estate by the husband, although the right is defeasible by the wife’s prior death. Kentucky Bank & Trust Co. v. Ashland Oil & Transp. Co., 310 S.W.2d 287, 1958 Ky. LEXIS 389 ( Ky. 1958 ).

Where the testator’s will gave his wife the share of his estate which she would have received had he died intestate and this section was amended to substantially alter the share taken by the widow of an intestate between the execution of the will and the death of the testator, her share was properly determined under the law existing at his death. Scroghan v. Landers, 328 S.W.2d 411, 1959 Ky. LEXIS 105 ( Ky. 1959 ).

If a surviving spouse is not satisfied with the provisions under the will, this section permits the surviving spouse to renounce the will of the deceased spouse, and to receive as her portion of the estate her dower interest. Hannah v. Hannah, 824 S.W.2d 866, 1992 Ky. LEXIS 14 ( Ky. 1992 ).

Although the debtor husband’s dower interest in his wife’s inheritance under KRS 392.020 constituted property of the estate pursuant to 11 U.S.C.S. § 541(a)(1), and thus, the husband could claim an exemption in his inchoate dower interest the estate under 11 U.S.C.S. § 522(d)(1), he could only apply the exemption to the extent of the fair market value of that interest. Thus, the court reversed the bankruptcy court’s decision and remanded the matter to the bankruptcy court to determine the value of the husband’s dower interest in his wife’s inheritance. Elswick v. Miller (In re Elswick), 2012 U.S. Dist. LEXIS 81098 (E.D. Ky. June 12, 2012).

5.— Indivisible Property.

Where land is indivisible, the court should estimate the value of the land and the probable life of the widow and allot her a sum of money, realized from the sale of the property, in lieu of dower. Rich v. Rich, 70 Ky. 53 , 1869 Ky. LEXIS 257 ( Ky. 1869 ) (decided under prior law).

6.— Acknowledgment of Deed.

When the wife does not join in the conveyance in the body of the deed but merely signs and acknowledges it, such signing and acknowledging is insufficient to pass her dower rights to the purchaser. Prather v. McDowell, 71 Ky. 46 , 1871 Ky. LEXIS 12 ( Ky. 1871 ) (decided under prior law). See Buford's Adm'r v. Guthrie, 77 Ky. 677 , 1878 Ky. LEXIS 97 ( Ky. 1878 ), 690,, 1878 Ky. LEXIS 97 (1879) (decided under prior law).

7.— Land Held in Trust.

The widow is not entitled to dower in land the title to which the husband held in trust. Hence where title was conveyed to the husband and he immediately conveyed to another, pursuant to an agreement, the widow was not entitled to dower therein. Gully v. Ray, 57 Ky. 107 , 1857 Ky. LEXIS 18 ( Ky. 1857 ) (decided under prior law). See McIlvaine v. McIlvanie, 10 Ky. Op. 181, 1879 Ky. LEXIS 109 (Ky. Ct. App. Jan. 15, 1879) (decided under prior law).

8.— Effect of Will.

Where a husband makes a provision for his wife in his will, it will be presumed that the devise or bequest was in lieu of the interest given to her by this section unless a contrary intention appears from the will or is necessarily inferable from it. Ray v. Ray, 298 Ky. 162 , 182 S.W.2d 664, 1944 Ky. LEXIS 879 ( Ky. 1944 ).

This section and KRS 392.080 must be construed together, and as so construed they mean that where the husband makes a provision for the wife in his will, and she does not renounce the will, she is not entitled to the interest as surviving spouse given to her by this section, unless a contrary intention appears from the will or is necessarily inferable from it. Ray v. Ray, 298 Ky. 162 , 182 S.W.2d 664, 1944 Ky. LEXIS 879 ( Ky. 1944 ).

Where one clause of husband’s will devised certain real estate to widow, and residuary clause devised remainder of husband’s estate “to those persons entitled to receive the same under the laws of the State of Kentucky,” the widow could claim her dower rights in the residuary estate, in addition to the real estate specifically devised to her, since the direction of the testator that the residue go to those persons entitled to the same under the law constituted a plain expression of the intention of the testator, within the meaning of subsection (2) of KRS 392.080 , that the widow should have her dower in addition to the specific devise. Wilson v. Fisher, 298 Ky. 790 , 184 S.W.2d 104, 1944 Ky. LEXIS 1002 ( Ky. 1944 ).

Husband cannot, by will, defeat widow’s dower right, since widow may renounce the will. Wides v. Wides' Ex'r, 299 Ky. 103 , 184 S.W.2d 579, 1944 Ky. LEXIS 1037 ( Ky. 1944 ).

Where second wife who at time of marriage had no actual notice or knowledge of provision contained in judgment granting husband divorce requiring husband to make a will leaving all of his property to his divorced first wife and his children which provision was inserted in judgment pursuant to property settlement, she could renounce will leaving most of husband’s estate to divorced wife and children and could claim her dower rights. Wides v. Wides' Ex'r, 299 Ky. 103 , 184 S.W.2d 579, 1944 Ky. LEXIS 1037 ( Ky. 1944 ).

Where a husband makes a provision for his wife in his will, it will be presumed that such devise was in lieu of the interest given her by this section, unless a contrary intention appears from the will or is necessarily inferable. Morguelan v. Morguelan's Ex'r, 307 Ky. 94 , 209 S.W.2d 824, 1948 Ky. LEXIS 686 ( Ky. 1948 ).

Where a husband dies testate, the surviving spouse takes nothing under this section, except as provided by KRS 392.080 in the event of renunciation. Hedden v. Hedden, 312 S.W.2d 891, 1958 Ky. LEXIS 241 ( Ky. 1958 ).

Where a surviving spouse renounces the will, he receives a life estate in one-third of the real estate. Hedden v. Hedden, 312 S.W.2d 891, 1958 Ky. LEXIS 241 ( Ky. 1958 ).

Where a will provided that the wife was to take her statutory rights only and no more and the widow elected to take under such devise, her share of estate was measured by statute of descent and distribution as though testator had died intestate. Ellenstein v. Rider, 327 S.W.2d 945, 1959 Ky. LEXIS 81 ( Ky. 1959 ).

Where the testator’s will left his widow one-third of his estate stating that that was the amount of statutory dower at the time the will was made, the widow’s claim that she was entitled to one-half because dower was statutorily changed to that amount was denied. Richie v. Richie, 476 S.W.2d 190, 1972 Ky. LEXIS 380 ( Ky. 1972 ).

This section does not bar a widow from claiming dower and at the same time taking as a beneficiary under her husband’s will. Lurding v. Sonne, 480 S.W.2d 173, 1972 Ky. LEXIS 280 ( Ky. 1972 ).

A husband is precluded not only from making gifts during his lifetime to defeat the dower interests of his wife, but he is also prohibited from disposing of his property by will to defeat dower because, in such a case, the widow can renounce the will and take her interest as provided by this section. Harris v. Rock, 799 S.W.2d 10, 1990 Ky. LEXIS 95 ( Ky. 1990 ).

Although two spouses had executed mutual wills and a will contract “not to revoke or change their respective wills,” the surviving spouse could, upon the death of her husband, renounce her late husband’s will and claim her share as if he had died intestate because the will contract addressed revoking and changing the parties’ respective wills and was silent as to renouncing the decedent’s will. Bauer v. Piercy, 912 S.W.2d 457, 1995 Ky. App. LEXIS 213 (Ky. Ct. App. 1995).

9.— Survivorship of Rights.

The widow’s right to dower in real estate owned by her deceased husband dies with the widow; the personal representative of the deceased widow has no right thereto where the dower was not allotted during the lifetime of the widow. Cain's Adm'r v. Kentucky & I. B. & R. Co., 124 Ky. 449 , 99 S.W. 297, 30 Ky. L. Rptr. 593 , 1907 Ky. LEXIS 196 ( Ky. 1907 ).

10.— Mineral Rights.

The widow is entitled to dower in unopened mines. Trimble v. Kentucky River Coal Corp., 235 Ky. 301 , 31 S.W.2d 367, 1930 Ky. LEXIS 352 ( Ky. 1930 ).

A widow is entitled to dower in mineral leases owned by her husband. Pursifull's Adm'x v. Pursifull, 299 Ky. 245 , 184 S.W.2d 967, 1944 Ky. LEXIS 1042 ( Ky. 1944 ).

Petition that alleged that husband, in purchasing mineral leases, caused them to be placed in the name of a corporation which he controlled, that corporation held the leases “for the use of” the husband within the meaning of this section, and that widow was entitled to claim dower as against person to whom husband had caused leases to be transferred without wife’s signature and without consideration stated a cause of action. Pursifull's Adm'x v. Pursifull, 299 Ky. 245 , 184 S.W.2d 967, 1944 Ky. LEXIS 1042 ( Ky. 1944 ).

Under oil and gas lease which required lessee to commence drilling within a specified time, contained provisions for forfeiture for failure of lessee to comply with conditions of drilling, and spoke of lease being kept “alive” by assignee, the lessee did not acquire a fee simply title to the oil and gas, and his widow therefore had no dower right in the lease. Van Camp v. Evans, 306 Ky. 59 , 206 S.W.2d 38, 1947 Ky. LEXIS 938 ( Ky. 1947 ).

Where husband and wife conveyed the oil and gas interests in a particular tract and the grantee agreed to deliver to them one-eighth of all oil produced, the one-eighth interest of the grantors was a reservation appurtenant to the land, so that after the real estate was sold by execution to which the wife was not a party and the husband died, the wife was entitled only to the interest on one-third of the one-eighth royalties from the oil produced. Kentucky Bank & Trust Co. v. Ashland Oil & Transp. Co., 310 S.W.2d 287, 1958 Ky. LEXIS 389 ( Ky. 1958 ).

11.— Life Estate.

The widow is not entitled to dower in land in which her husband was seized with only a life estate. Brady v. Bardy, 158 Ky. 541 , 165 S.W. 655, 1914 Ky. LEXIS 642 ( Ky. 1914 ).

In no case is the widow entitled to dower under the statute where the husband had only a life estate in the land. Brady v. Bardy, 158 Ky. 541 , 165 S.W. 655, 1914 Ky. LEXIS 642 ( Ky. 1914 ).

Where one inherits land and then deeds away a life interest in it, the wife is entitled to dower. Carr v. Hart, 232 Ky. 37 , 22 S.W.2d 432, 1929 Ky. LEXIS 385 ( Ky. 1929 ).

Where land was deeded in trust for testator’s son during his life and then to his lawful heirs with no power in the son “over the land or to sell or dispose of same,” upon the death of the son his widow was not entitled to dower as her deceased husband was only a life tenant. Bodkin v. Wright, 266 Ky. 798 , 100 S.W.2d 824, 1937 Ky. LEXIS 8 ( Ky. 1937 ).

A life estate is not subject to dower. Ford v. Yost, 300 Ky. 764 , 190 S.W.2d 21, 1945 Ky. LEXIS 623 ( Ky. 1945 ).

12.— Relinquishment of Rights.

A married woman who files a pleading in court, which is sworn to by her, asserting that she has relinquished her dower rights in land, cannot thereafter claim dower rights in the same land after the death of her husband. Craddock v. Tyler, 66 Ky. 360 , 1867 Ky. LEXIS 193 ( Ky. 1867 ) (decided under prior law).

Where wife, in order to facilitate the sale of her husband’s land, had the salesman publicly announce that she would not claim dower against the purchaser, and the announcement was made and the land sold, she thereby relinquished her dower rights. Connolly v. Branstler, 66 Ky. 702 , 1868 Ky. LEXIS 62 ( Ky. 1868 ) (decided under prior law).

A widow was estopped to claim dower where the land was sold under a decree of court in an action to which she was a party and in which she failed to assert her claim. Stone v. Stone, 10 Ky. Op. 33, 1878 Ky. LEXIS 119 (Ky. Ct. App. Sept. 19, 1878) (decided under prior law).

The relinquishment of her dower rights in land received in exchange does not estop her from claiming dower out of the land given in exchange. Stevenson v. Brasher, 90 Ky. 23 , 13 S.W. 242, 11 Ky. L. Rptr. 799 , 1890 Ky. LEXIS 36 ( Ky. 1890 ) (decided under prior law).

When a wife signs a mortgage with her husband to secure a debt she relinquishes her right to dower and this relinquishment continues during the lifetime of the debt. Clift v. Williams, 105 Ky. 559 , 49 S.W. 328, 1899 Ky. LEXIS 239 ( Ky. 1899 ).

A widow who receives a devise and bequest made to her in her deceased husband’s will relinquishes her right to dower in real estate of which the husband died intestate. Smith v. Perkins, 148 Ky. 387 , 146 S.W. 758, 1912 Ky. LEXIS 446 ( Ky. 1912 ).

Where the husband is seized with fee simple title to realty and the wife joins him in a deed creating a life estate in another with remainder to the husband, the wife has not relinquished her dower rights in the fee, as a release of dower will only operate to the extent of accomplishing the purposes for which it was executed. Carr v. Hart, 232 Ky. 37 , 22 S.W.2d 432, 1929 Ky. LEXIS 385 ( Ky. 1929 ).

The surviving husband was not entitled to his distributable share of personal property of his deceased wife where he and she entered into a parol agreement to the effect that each would relinquish all rights to the property of the other and that each would give, by will, his or her property as he or she pleased and wills were executed in which neither gave any property to the other. Smith's Adm'r v. Price, 252 Ky. 806 , 68 S.W.2d 422, 1934 Ky. LEXIS 867 ( Ky. 1934 ).

Widow’s right of dower is an individual interest in her husband’s property and not merely a lien, and it can be released only where she pursues the law in that regard. Wides v. Wides' Ex'r, 299 Ky. 103 , 184 S.W.2d 579, 1944 Ky. LEXIS 1037 ( Ky. 1944 ).

Wife did not waive her dower interest in husband’s property forcibly sold under a distraint warrant, where the sale involved only the husband’s interest in the property, and where he placed the proceeds remaining after various tax claims had been satisfied in a joint bank account. Lurding v. Sonne, 480 S.W.2d 173, 1972 Ky. LEXIS 280 ( Ky. 1972 ).

If the surviving spouse fails to renounce the will, she loses her right to dower. Hannah v. Hannah, 824 S.W.2d 866, 1992 Ky. LEXIS 14 ( Ky. 1992 ).

Where plaintiff/spouse did not renounce the will as required by KRS 392.080 and instead, she probated the will and accepted and received the benefits of the will, by doing this she lost her right to her dower interest, and took as any other devisee; because she had no dower interest, she had no standing to assert her claim that a fraudulent transfer was made to defeat her dower interest. Hannah v. Hannah, 824 S.W.2d 866, 1992 Ky. LEXIS 14 ( Ky. 1992 ).

13.— — Antenuptial Contract.

A written antenuptial contract made by parties contemplating marriage whereby the prospective wife relinquishes her right to dower will be enforced if there is no fraud, deception, misrepresentation, concealment, or undue influence. Gaines v. Gaines' Adm'r, 163 Ky. 260 , 173 S.W. 774, 1915 Ky. LEXIS 217 ( Ky. 1915 ).

A parol antenuptial contract whereby each of the parties renounces interest in the other’s estate as survivor and retains control of his or her separate estate is void. Jones' Adm'r v. Jones' Adm'r, 280 Ky. 37 , 132 S.W.2d 509, 1939 Ky. LEXIS 54 ( Ky. 1939 ).

14.— — Postnuptial Contract.

Parol postnuptial contracts whereby the husband and wife release all interest in the other’s personal estate on the other’s death are valid. Jones' Adm'r v. Jones' Adm'r, 280 Ky. 37 , 132 S.W.2d 509, 1939 Ky. LEXIS 54 ( Ky. 1939 ).

Oral agreement between husband owning real estate and wife owning personal property, whereby each waived all rights by reason of marriage in property of other, was void as wife could not orally dispose of her inchoate dower right in husband’s real estate. Wigginton v. Leech's Adm'x, 285 Ky. 787 , 149 S.W.2d 531, 1941 Ky. LEXIS 472 ( Ky. 1941 ).

Where decedent and his wife had entered a postnuptial contract by which the decedent agreed to bequeath the wife their residence, its contents, and the interest on $7,000 for her life or until her remarriage and released any claim he might have to her property by reason of their marriage, there was sufficient consideration for her relinquishing any additional claims to his property. Campbell v. Campbell, 377 S.W.2d 93, 1964 Ky. LEXIS 488 ( Ky. 1964 ).

15.—Fraud.

Where the husband and wife are separated, but not divorced, and the husband buys land having the title transferred to his son for the purpose of defeating the wife’s dower rights, the wife is entitled to dower in the land at the death of the husband. Redmond's Adm'x v. Redmond, 112 Ky. 760 , 66 S.W. 745, 23 Ky. L. Rptr. 2161 , 1902 Ky. LEXIS 220 ( Ky. 1902 ).

A conveyance of real estate made after agreement to marry, without consideration and without the knowledge or consent of intended wife, is a fraud on the wife and will be declared void to the extent that it deprives her of dower in the real estate conveyed. Anderson v. Anderson, 194 Ky. 763 , 240 S.W. 1061, 1922 Ky. LEXIS 245 ( Ky. 1922 ).

Where the husband, during the existence of the marital relationship, pays for land and has the deed made to another but keeps possession of the land and uses it until his death as his own, his widow is entitled to have the deed set aside and dower assigned to her. Rowe v. Ratliff, 268 Ky. 217 , 104 S.W.2d 437, 1937 Ky. LEXIS 436 ( Ky. 1937 ).

Fact that husband, just before his marriage, had transferred practically all of his funds to his sister, who advanced him money whenever he needed it, held to show that an understanding existed between them for purpose of preventing wife from enforcing her marital rights in husband’s property. Martin v. Martin, 282 Ky. 411 , 138 S.W.2d 509, 1940 Ky. LEXIS 176 ( Ky. 1940 ).

A man may not make a voluntary transfer of either his real or personal estate with intent to prevent his wife or intended wife from sharing in such property at his death; and if such a transfer is made the wife, on the husband’s death, may assert her marital rights in such property in the hands of the donee. Martin v. Martin, 282 Ky. 411 , 138 S.W.2d 509, 1940 Ky. LEXIS 176 ( Ky. 1940 ).

An absolute bona fide gift of personalty, made to a third person by a husband or intended husband, is not a fraud on the marital rights of the wife, even though made with the intent and purpose of depriving her of her share in the property; but if the transfer is colorable, and the husband or intended husband does not part with absolute dominion over the property, the transfer is fraudulent. Martin v. Martin, 282 Ky. 411 , 138 S.W.2d 509, 1940 Ky. LEXIS 176 ( Ky. 1940 ).

A gift causa mortis by a husband to a third person is a fraud on the wife’s marital rights, where the gift is made to prevent her sharing in the property, since the gift does not take effect until the death of the donor. Martin v. Martin, 282 Ky. 411 , 138 S.W.2d 509, 1940 Ky. LEXIS 176 ( Ky. 1940 ).

A transfer of property may be avoided where the grantor made it with an intent to marry and to defeat the marital rights of any person he might marry, whether or not he was then engaged to be married; it is not necessary that the fraudulent intent be directed against any particular person. Martin v. Martin, 282 Ky. 411 , 138 S.W.2d 509, 1940 Ky. LEXIS 176 ( Ky. 1940 ).

Wife could not, as administratrix of husband’s estate, recover from husband’s sister funds which he had unconditionally transferred to her in fraud of her marital rights, since as administratrix she had only those rights which the deceased husband had. Martin v. Martin, 282 Ky. 411 , 138 S.W.2d 509, 1940 Ky. LEXIS 176 ( Ky. 1940 ).

In action to recover from donee property transferred by prospective husband in fraud of wife’s marital rights, judgment should be entered against person to whom donee, before her death, had given the property. Martin v. Martin, 282 Ky. 411 , 138 S.W.2d 509, 1940 Ky. LEXIS 176 ( Ky. 1940 ).

Evidence that a father borrowed money from his son to purchase real estate for the family home and placed the title in the son’s name to secure the loan and the son later advanced substantial sums to pay for improvements, street assessments and taxes, but permitted the father to exercise complete control over the property, failed to show any fraud or bad faith with respect to the dower rights of father’s second wife. Chalk v. Chalk, 291 Ky. 702 , 165 S.W.2d 534, 1942 Ky. LEXIS 310 ( Ky. 1942 ).

A husband, properly, may not make a voluntary transfer of either his real or personal estate with the intent to prevent his wife from sharing in such property at his death, if such a transfer is made, the wife, on the husband’s death, may assert her marital rights in such property in the hands of the donee. Benge v. Barnett, 309 Ky. 354 , 217 S.W.2d 782, 1949 Ky. LEXIS 699 ( Ky. 1949 ).

Where deceased, shortly before his death, gave to his brother and sisters, who were not dependent upon him for support, 45% of the personal property he owned at the time, and in his will sought to deprive his widow entirely of any interest in his personalty, the facts established husband’s intention to defraud his wife of her distributable share of his personal estate, and she was entitled to recover one-half from each of the donees. Benge v. Barnett, 309 Ky. 354 , 217 S.W.2d 782, 1949 Ky. LEXIS 699 ( Ky. 1949 ).

An attempted gift by a husband of more than one-half of his personalty in an attempt to defeat the dower interest of his widow would be set aside. Harris v. Rock, 799 S.W.2d 10, 1990 Ky. LEXIS 95 ( Ky. 1990 ).

Absent an agreement of the parties, a disposition of property with the intent to defeat the right of dower creates a presumption of fraud upon the surviving spouse, and the deposit of approximately seven-eighths (7/8) of the personal estate of the decedent into a joint account with his children left no doubt of his intent to defeat the movant’s dower interest. Harris v. Rock, 799 S.W.2d 10, 1990 Ky. LEXIS 95 ( Ky. 1990 ).

The estate cannot bring an action to rescind a transfer that was made with the intent to deprive the wife or her dower interest; only the widow individually had such right. Hannah v. Hannah, 824 S.W.2d 866, 1992 Ky. LEXIS 14 ( Ky. 1992 ).

Life-insurance beneficiary has only a contingent interest in the benefits of the policy, and where the insured retains the right to change the beneficiary, that right is virtually absolute; where a dying spouse exercises that right to remove the surviving spouse as a named beneficiary and instead names a trust for the benefit of the minor child of the marriage, the surviving spouse cannot claim fraud on his or her statutory spousal interest. Bays v. Kiphart, 486 S.W.3d 283, 2016 Ky. LEXIS 175 ( Ky. 2016 ).

Estate of the decedent was entitled to recoup the decedent’s dower in money withdrawn from the bank account of the decedent’s late husband by an adult child two days before the husband’s death because the gift of money from the husband to the child was fraudulent as the gift was in causa mortis, without the decedent’s knowledge, and was intended to deprive the decedent and the other children of any portion of the money. The decedent’s estate was entitled to recoup a portion of the personal estate (excluding a statutory set-off). Simpson v. Wethington, 641 S.W.3d 124, 2022 Ky. LEXIS 32 ( Ky. 2022 ).

16.— Trust Property.

A freehold interest as cestui que trust is an adequate basis for dower. Pursifull's Adm'x v. Pursifull, 299 Ky. 245 , 184 S.W.2d 967, 1944 Ky. LEXIS 1042 ( Ky. 1944 ).

17.— Defeasible Fee.

Where the husband owns a defeasible fee in land, the widow on his death is entitled to dower therein. Landers v. Landers, 151 Ky. 206 , 151 S.W. 386, 1912 Ky. LEXIS 774 ( Ky. 1912 ).

18.— Remainder Interest.

The widow is not entitled to dower in a remainder or reversionary interest of the husband in land where there was no seisin by the husband in fact or in law at any time during the marriage. Carter v. McDaniel, 94 Ky. 564 , 23 S.W. 507, 15 Ky. L. Rptr. 349 , 1893 Ky. LEXIS 108 ( Ky. 1893 ) (decided under prior law).

The remainderman is not seized with title or actual possession sufficient to give his widow dower rights in land if he predeceases the life tenant. Maupin v. Maupin's Guardian, 110 S.W. 840, 33 Ky. L. Rptr. 658 (1908).

19.— Common-law Marriage.

Woman who entered into common-law marriage with deceased in Ohio and lived with him as wife there and in Kentucky until his death, they holding themselves out as husband and wife, was entitled to dower and widow’s statutory allowance in deceased’s estate. Hoffman v. Hoffman, 285 Ky. 55 , 146 S.W.2d 347, 1940 Ky. LEXIS 598 ( Ky. 1940 ).

Where Kentucky citizens went to Florida and entered into a common-law marriage which was valid there, and then returned to Kentucky to live, on husband’s death the wife was entitled to the widow’s statutory portion of his estate. Brown's Adm'r v. Brown, 308 Ky. 796 , 215 S.W.2d 971, 1948 Ky. LEXIS 1052 ( Ky. 1948 ).

20.— Equitable Title in Property.

Where the husband purchases real estate and the vendor gives his title bond for a conveyance upon the payment of the remainder of the purchase price, the widow of the purchaser is entitled to dower therein subject to the payment of the remainder of the purchase price. Harrison v. Griffith, 67 Ky. 146 , 1868 Ky. LEXIS 95 ( Ky. 1868 ) (decided under prior law). See Brewer v. Vanarsdale's Heirs, 36 Ky. 204 , 1838 Ky. LEXIS 25 ( Ky. 1838 ) (decided under prior law).

Where a husband holds equitable title of the character that entitles him to have or enforce a conveyance of the legal title, as distinguished from a mere equity in the land or the holding of title as agent or trustee, his widow is entitled to dower interest in the property. Chalk v. Chalk, 291 Ky. 702 , 165 S.W.2d 534, 1942 Ky. LEXIS 310 ( Ky. 1942 ).

21.— Forcible Detainer Action.

Dower right of widow of landlord includes right to maintain forcible detainer action against tenant of deceased husband holding over. Moore v. Ramsey, 272 Ky. 582 , 114 S.W.2d 1101, 1938 Ky. LEXIS 165 ( Ky. 1938 ).

22.— Cash Value of Right.

In determining the cash value of a dower right the most accurate mortality table which is readily available to the bench and bar should be used and the computation would be based on the interest rate generally available at the time on investments specified in KRS 386.020 . Morris v. Morris, 293 S.W.2d 243, 1956 Ky. LEXIS 62 ( Ky. 1956 ).

23.— Attorneys’ Fees.

A widow in seeking to have the estate settled and her dower rights determined and assigned is proceeding as a beneficiary and not as a creditor and is, therefore, entitled to a reasonable allowance out of the estate for her attorney’s fees, where the conditions justify the action and other beneficiaries receive some benefit from the determination of rights for which the suit is instituted. Chalk v. Chalk, 291 Ky. 702 , 165 S.W.2d 534, 1942 Ky. LEXIS 310 ( Ky. 1942 ).

24.— Execution Sale.

The widow does not lose her dower rights when the land of her husband is sold at a judicial sale to satisfy a judgment against the husband as surety on a sheriff’s bond. Vinson v. Gentry, 21 S.W. 578, 14 Ky. L. Rptr. 804 (1893) (decided under prior law).

Where husband’s property was sold on execution prior to his death, he did not die seized of the property and his widow’s dower interest was only a life estate in one-third. Walters v. Anderson, 361 S.W.2d 31, 1962 Ky. LEXIS 226 ( Ky. 1962 ).

25.— Equivalent of Dower.

Where husband had title to land placed in son’s name, to secure loan from son, and prior to husband’s death a part of the land was sold to an innocent purchaser without the wife’s jointure, the wife was entitled to an allotment of equivalent dower in other real estate. Chalk v. Chalk, 291 Ky. 702 , 165 S.W.2d 534, 1942 Ky. LEXIS 310 ( Ky. 1942 ).

26.— Condemnation Proceeds.

A wife is entitled to share in the proceeds from condemnation of her husband’s real estate by virtue of her inchoate dower right. United States ex rel. Tennessee Valley Authority v. Spiceland, 52 F. Supp. 40, 1943 U.S. Dist. LEXIS 2068 (D. Ky. 1943 ).

27.— Priority of Claims.

The widow has a right to dower in partnership lands but the dower right is subordinate to the claims of the partnership creditors. Galbraith v. Gedge & Bros., 55 Ky. 631 , 1855 Ky. LEXIS 80 ( Ky. 1855 ) (decided under prior law).

The dower rights of the widow are inferior to tax liens. Mulligan v. Mulligan, 161 Ky. 628 , 171 S.W. 420, 1914 Ky. LEXIS 148 ( Ky. 1914 ).

Delinquent taxes on the land of a deceased debtor set aside for dower should be charged against the dower interest, and taxes on the portion set aside to satisfy a lien should be charged against the creditor. Maryland Casualty Co. v. Lewis, 276 Ky. 263 , 124 S.W.2d 48, 1939 Ky. LEXIS 509 ( Ky. 1939 ).

The tax liens provided in KRS 134.420 are superior to the inchoate right of dower. Maryland Casualty Co. v. Lewis, 276 Ky. 263 , 124 S.W.2d 48, 1939 Ky. LEXIS 509 ( Ky. 1939 ).

The lien provided by KRS 134.230 on the real estate of the sheriff is not superior to the dower right. Maryland Casualty Co. v. Lewis, 276 Ky. 263 , 124 S.W.2d 48, 1939 Ky. LEXIS 509 ( Ky. 1939 ).

A tax lien has precedence over an inchoate right of dower. Stokes v. Commonwealth, 286 Ky. 391 , 150 S.W.2d 892, 1941 Ky. LEXIS 257 ( Ky. 1941 ).

A vendor’s lien is superior to the right of dower, regardless of whether the lien is retained by statement in the deed. Chalk v. Chalk, 291 Ky. 702 , 165 S.W.2d 534, 1942 Ky. LEXIS 310 ( Ky. 1942 ).

A lien for taxes or for street improvement assessments is superior to the right of dower, and a person who is subrogated to the lien by payment of the tax or assessment retains the superiority. Chalk v. Chalk, 291 Ky. 702 , 165 S.W.2d 534, 1942 Ky. LEXIS 310 ( Ky. 1942 ).

Where son advanced money to enable father to purchase property, and title was placed in son’s name to secure the advancement, the son had the equivalent of a vendor’s lien, which was superior to the mother’s right of dower. Chalk v. Chalk, 291 Ky. 702 , 165 S.W.2d 534, 1942 Ky. LEXIS 310 ( Ky. 1942 ).

Where married man acquired title to real estate by virtue of a court action, the lien for fees of the attorney who prosecuted the action was superior to the dower and homestead interest of the client’s wife. Brown v. Ingram's Ex'x, 292 Ky. 703 , 168 S.W.2d 31, 1943 Ky. LEXIS 742 ( Ky. 1943 ).

Where a husband’s conveyance of realty to himself and his wife by the entireties was set aside as being in fraud of creditor, the wife’s inchoate dower interest of a life estate in one-third of the realty had preference to the creditor’s claim. Mattingly v. Gentry, 419 S.W.2d 745, 1967 Ky. LEXIS 184 ( Ky. 1967 ).

28.— Estoppel.

A widow who accepts a devise made in her husband’s will cannot claim dower in addition thereto; also she is estopped to claim property as her own which the testator devised to another in the same will; likewise she is estopped from contesting any transfer made by her husband during his lifetime of his property to another. Cooke v. Fidelity Trust & Safety-Vault Co., 104 Ky. 473 , 47 S.W. 325, 20 Ky. L. Rptr. 667 , 1898 Ky. LEXIS 181 ( Ky. 1898 ).

Where husband conveyed realty to his wife, as part of a separation agreement, and for a valuable consideration, the deed specifying that the husband was relinquishing all claims against the wife including “dower,” and the wife sold the land and died possessed of the purchase price realized therefrom, the husband had waived his curtesy rights and was estopped to assert them. Simmons Adm'r v. Simmons, 150 Ky. 85 , 150 S.W. 59, 1912 Ky. LEXIS 864 ( Ky. 1912 ).

Where the wife of a deceased former sheriff was estopped by KRS 382.270 from asserting a deed by which he conveyed property to her against the claim of his surety as subrogee of a lien imposed by KRS 134.230 , she was not estopped from asserting her dower interest in the property. Maryland Casualty Co. v. Lewis, 276 Ky. 263 , 124 S.W.2d 48, 1939 Ky. LEXIS 509 ( Ky. 1939 ).

Where a husband’s property was sold on execution of $16,000 more than the amount of the judgment, the purchaser designated $4,000 of the excess as the value of the wife’s inchoate dower, and that account was set aside by the court then later paid to the wife under a court order stating that it was paid to her as assignee of her husband and without prejudice to her dower rights, the wife was not estopped from asserting her dower right in the property after the husband’s death. Walters v. Anderson, 361 S.W.2d 31, 1962 Ky. LEXIS 226 ( Ky. 1962 ).

29.— Joint Account.

A husband has no legal right to dispose of more than one-half of his property with intent to defeat a dower claim by his widow; it follows that a husband cannot be permitted to circumvent the law and intentionally defeat a dower claim by means of a deposit into a joint account with someone other than his wife, and KRS 391.315(1) is interpreted to mean that upon the death of a party to a joint account, the funds on deposit therein do not belong to the survivor if: (1) there is clear and convincing evidence of a different intention at the time the account was created, or (2) if the depositor was not legally entitled to make such a disposition of the funds. Harris v. Rock, 799 S.W.2d 10, 1990 Ky. LEXIS 95 ( Ky. 1990 ).

It is true that KRS 391.315 provides that funds deposited into a joint account belong to the survivor as against the estate of the decedent upon the death of the other party to the account, but this is subject to a statutory limitation that the funds do not become the property of the survivor if there is clear and convincing evidence of a different intention at the time the account was created; there is also another limitation, necessarily implied in law, that the survivor of parties to a joint account cannot become the owner of the funds in the account upon the death of the other party if the party who deposited the funds was not legally entitled to dispose of them in such a manner. Harris v. Rock, 799 S.W.2d 10, 1990 Ky. LEXIS 95 ( Ky. 1990 ).

30.— Partition Between Tenants in Common.

A voluntary partition made between tenants in common, free from fraud and fairly made, will transfer the rights of dower of the wives of the tenants in common even though the wives do not join in the deeds. Gross v. Leiber's Adm'r, 10 Ky. Op. 316, 1879 Ky. LEXIS 196 (Ky. Ct. App. June 26, 1879).

31.— Right to Compel Partition.

The widow does not have such an interest in land of her husband as to permit her to maintain a law suit for its sale and allotment of dower from the proceeds, by making it appear that dower could not be assigned to her without impairing the value of the real estate. Liederkranz Soc. v. Beck, 71 Ky. 597 , 1871 Ky. LEXIS 105 ( Ky. 1871 ).

32.— Waiver.

The widow who does not answer a summons in a suit in which her deceased husband’s land is being subjected to the payment of his debts by his creditors, does not thereby waive her right to dower, but she must accept out of the proceeds of the sale an equitable compensation for the rights of dower. Merriwether v. Sebree, 65 Ky. 232 , 1867 Ky. LEXIS 62 ( Ky. 1867 ) (decided under prior law).

33.Curtesy.

The surviving husband takes no curtesy in land which was held in trust for the use and benefit of his deceased wife, for life, and the remainder to her “issue.” Churchill v. Reamer, 71 Ky. 256 , 1871 Ky. LEXIS 46 ( Ky. 1871 ) (decided under prior law).

Where widow remained in possession of the land of her deceased husband with the consent of the adult children, and one of the children died survived by a husband, the surviving husband was entitled to curtesy in the land. There was sufficient seisin in the daughter to satisfy the law. Carr v. Givens, 72 Ky. 679 , 1873 Ky. LEXIS 27 ( Ky. 1873 ) (decided under prior law).

Where father conveyed land to daughter, and father, daughter and her husband continued to live upon the land until the death of the daughter, the surviving husband was entitled to curtesy in the land. The father held the land during the lifetime of the daughter for her use. Yankey v. Sweeney, 85 Ky. 55 , 2 S.W. 559, 8 Ky. L. Rptr. 944 , 1887 Ky. LEXIS 14 ( Ky. 1887 ) (decided under prior law).

A surviving husband is not entitled to claim an estate for life in one-third of the real estate owned by his deceased wife if he claims a homestead under KRS 427.070 . He must elect between these claims and the election of one bars a right to the other. Carpenter v. Hazelrigg, 103 Ky. 538 , 45 S.W. 666, 20 Ky. L. Rptr. 231 , 1898 Ky. LEXIS 90 ( Ky. 1898 ).

This statute is not applicable to the curtesy rights of the husband in land acquired before its enactment. Mitchell v. Violett, 104 Ky. 77 , 47 S.W. 195, 20 Ky. L. Rptr. 378 , 1898 Ky. LEXIS 158 ( Ky. 1898 ). See Hall v. Moore, 105 S.W. 414, 32 Ky. L. Rptr. 56 (1907).

A surviving husband has no curtesy right in land in which his wife held a remainder interest where the land was adversely possessed from the death of the life tenant until the death of wife because there was no seisin of the land by the wife. Parsons v. Justice, 163 Ky. 737 , 174 S.W. 725, 1915 Ky. LEXIS 310 ( Ky. 1915 ).

Where property was devised to five children to be divided equally between them at the end of 15 years and one of the daughters died before the expiration of the 15-year period, intestate and without issue, the daughter was seized with a defeasible fee in the property and her surviving husband was entitled to curtesy. Cooper's Adm'r v. Clarke, 192 Ky. 404 , 240 S.W. 361, 1921 Ky. LEXIS 172 ( Ky. 1921 ).

It was error to award a widower a curtesy interest in the proceeds of the widower’s deceased wife’s life insurance policy, based on a finding that the wife committed fraud on the widower’s “dower” interest by changing the policy’s beneficiary, because it was error to find the policy was part of the wife’s estate, since (1) the wife never possessed the policy’s proceeds, (2) the proceeds were only an expectancy, and (3) the wife had the absolute authority to change the beneficiary without the widower’s knowledge or consent. Kiphart v. Bays, 2014 Ky. App. LEXIS 50 (Ky. Ct. App. Mar. 21, 2014, sub. op., 2014 Ky. App. Unpub. LEXIS 1025 (Ky. Ct. App. Mar. 21, 2014).

Court of appeals properly ruled that a surviving husband's statutory spousal interest did not attach to life insurance proceeds because they were never part of the decedent's estate since the decedent retained an absolute right to change the beneficiary; the decedent's decision to exercise the right to change the beneficiary could not be fraud on the husband's statutory interest because she never owned the proceeds of the insurance policies, and thus, they never become part of her estate. Bays v. Kiphart, 486 S.W.3d 283, 2016 Ky. LEXIS 175 ( Ky. 2016 ).

34.— Mortgage.

Where a husband joins in a mortgage he releases his curtesy rights in the mortgaged real estate to the extent of the mortgage and, upon sale of the property he has curtesy rights to one-half of the proceeds left after payment of the mortgage debt. Ketterer v. Nelson, 146 Ky. 7 , 141 S.W. 409, 1911 Ky. LEXIS 758 ( Ky. 1911 ).

35.— Life Estate.

Where a wife who was entitled to a portion of her father’s estate subject to a life estate in her mother predeceased the mother survived by a husband, the husband was not entitled to curtesy in the land that was subject to the life estate. Stewart v. Barclay, 65 Ky. 550 , 1866 Ky. LEXIS 199 ( Ky. 1866 ) (decided under prior law).

Where a testator devises land to his wife for life and then to his daughter and the daughter dies before the wife of the testator survived by a husband, the surviving husband is not entitled to curtesy in the land because his wife was not seized of a fee simple title during coverture. Chilton v. Chilton, 217 Ky. 258 , 289 S.W. 275, 1926 Ky. LEXIS 74 ( Ky. 1926 ).

36.— Priority of Claims.

A lien for street improvements is superior to the claim for curtesy. Ketterer v. Nelson, 146 Ky. 7 , 141 S.W. 409, 1911 Ky. LEXIS 758 ( Ky. 1911 ).

37.— Necessary Parties.

Where husband of one of joint owners of land was not made party to action to sell land for purpose of making division among joint owners, he was not divested of his inchoate interest and could not be forced to accept a share of the proceeds of the sale. Perry v. Bailey, 290 Ky. 129 , 160 S.W.2d 617, 1942 Ky. LEXIS 374 ( Ky. 1942 ).

The husband of an owner of an undivided interest in a remainder is not a necessary or proper party to an equitable action for partition of the remainder interest so long as the life tenant is living, because the wife was not seized of her estate in fee simple and the husband’s interest under this section applies only to property of which the wife was seized in fee simple during coverture, however, upon the death of the life tenant the wife becomes seized, the husband’s interest arises under this section, and he thereby becomes a necessary party to an equitable action for partition. Faulkner v. Terrell, 287 S.W.2d 409, 1956 Ky. LEXIS 453 ( Ky. 1956 ).

Where, during the pendency of an equitable action for partition of undivided remainder interests in realty, the life tenant died and the husband of the owner of an undivided interest in the remainder was not made a party, on appeal from the judgment ordering partition the court of appeals reversed so much of the judgment that failed to divest the husband of his inchoate interest with instructions to allow the husband to become a party and ratify the judgment and upon his failure to do so for the opposing parties to make him a party. Faulkner v. Terrell, 287 S.W.2d 409, 1956 Ky. LEXIS 453 ( Ky. 1956 ).

38.Surplus Property.

The surplus personalty provided for in this section is the personalty remaining after the debts, funeral expenses and widow’s exemption have been deducted from the gross personalty possessed by decedent at the time of his death. Talbott's Ex'r v. Goetz, 286 Ky. 504 , 151 S.W.2d 369, 1941 Ky. LEXIS 296 ( Ky. 1941 ).

“Surplus” as used in this section means what is left after payment of funeral expenses, charges of administration, and debts. Mattingly v. Gentry, 419 S.W.2d 745, 1967 Ky. LEXIS 184 ( Ky. 1967 ).

Cited:

Dougherty v. United States, 175 F. Supp. 339, 1959 U.S. Dist. LEXIS 2948 (E.D. Ky. 1959 ), rev’d, 292 F.2d 331, 1961 U.S. App. LEXIS 3942 (6th Cir. 1961); Moore v. United States, 214 F. Supp. 603, 1963 U.S. Dist. LEXIS 10294 (W.D. Ky. 1963 ); Hicks v. Oak’s Adm’r, 233 Ky. 27 , 24 S.W.2d 917, 1930 Ky. LEXIS 488 ( Ky. 1930 ); Mason’s Adm’r v. Mason’s Guardian, 239 Ky. 208 , 39 S.W.2d 211, 1931 Ky. LEXIS 7 44 ( Ky. 1931 ); Ruh’s Ex’rs v. Ruh, 270 Ky. 792 , 110 S.W.2d 1097, 1937 Ky. LEXIS 170 ( Ky. 1937 ); Moore v. Ramsey, 272 Ky. 582 , 114 S.W.2d 1101, 1938 Ky. LEXIS 165 ( Ky. 1938 ); Truitt v. Truitt’s Adm’r, 290 Ky. 632 , 162 S.W.2d 31, 1942 Ky. LEXIS 454 , 140 A.L.R. 1127 ( Ky. 1942 ); Ray v. Ray, 298 Ky. 162 , 182 S.W.2d 664, 1944 Ky. LEXIS 879 ( Ky. 1944 ); Ferguson v. Board of Drainage Comm’rs, 299 Ky. 538 , 186 S.W.2d 16, 1945 Ky. LEXIS 460 ( Ky. 1945 ); Purcell v. Purcell, 303 Ky. 478 , 198 S.W.2d 43, 1946 Ky. LEXIS 874 ( Ky. 1946 ); Lincoln Bank & Trust Co. v. Huber, 240 S.W.2d 89, 1951 Ky. LEXIS 953 ( Ky. 1951 ); Reynolds v. McGuire, 253 S.W.2d 386, 1952 Ky. LEXIS 1089 ( Ky. 1952 ); Henderson’s Adm’r v. Bewley, 264 S.W.2d 680, 51 A.L.R.2d 159 ( Ky. 1953 ), cert. denied, Bewley v. Henderson, 348 U.S. 926, 75 S. Ct. 334, 99 L. Ed. 726, 1955 U.S. LEXIS 1244 (1955), overruled, Marcum v. Marcum, 377 S.W.2d 62, 1964 Ky. LEXIS 476 ( Ky. 1964 ), overruled in part, Marcum v. Marcum, 377 S.W.2d 62, 1964 Ky. LEXIS 476 ( Ky. 1964 ); Hays v. Coy, 264 S.W.2d 258, 1954 Ky. LEXIS 657 ( Ky. 1954 ); Smith v. Vanover, 264 S.W.2d 884, 1954 Ky. LEXIS 7 09 ( Ky. 1954 ); Hedden v. Hedden, 312 S.W.2d 891, 1958 Ky. LEXIS 241 ( Ky. 1958 ); Harlan Nat’l Bank v. Brown, 317 S.W.2d 903, 1958 Ky. LEXIS 121 ( Ky. 1958 ); Mattingly v. Gentry, 419 S.W.2d 745, 1967 Ky. LEXIS 184 ( Ky. 1967 ); Herren v. Cochran, 697 S.W.2d 149, 1985 Ky. App. LEXIS 589 (Ky. Ct. App. 1985); Brown v. Sammons, 743 S.W.2d 23, 1988 Ky. LEXIS 7 ( Ky. 1988 ); Mathias v. Martin, 87 S.W.3d 859, 2002 Ky. LEXIS 156 ( Ky. 2002 ); First Union Home Equity Bank, N.A. v. Bedford Loan & Deposit Bank, 111 S.W.3d 892, 2003 Ky. App. LEXIS 178 (Ky. Ct. App. 2003); Keith v. Cross, 636 S.W.3d 842, 2021 Ky. App. LEXIS 115 (Ky. Ct. App. 2021).

Opinions of Attorney General.

Exempt property under KRS 391.030 should not be charged against the one-half of the surplus personalty distributable under this section when the surviving spouse has renounced the will, since former subsection (4) of KRS 391.030 specifically allowed the $3500 (now $15,000) personalty exemption for a surviving spouse who had renounced a will under KRS 392.080 , and, were that $3500 to be considered as a set-off against the surplus under this section, there would in fact have been no exemption; accordingly, if, after payment of the subject $3500 and the debts and expenses, there remains any personalty for further distribution, the surviving spouse is entitled to “an absolute estate in one-half” of any such surplus in accord with this section. OAG 81-256 .

Research References and Practice Aids

Cross-References.

Advancements have no effect on dower, KRS 391.140 .

Curtesy not barred unless husband joins in conveyance, KRS 404.030 .

Surviving spouses statutory exemption, KRS 391.030 .

Kentucky Bench & Bar.

Eardly & Ruml, My Old Kentucky Home or the Sunshine State? Residency and Estate Planning Issues for Kentucky “Snowbirds” in Florida, Volume 74, No. 6, November 2010, Ky. Bench & Bar 20.

Kentucky Law Journal.

Matthews, Dower, Principal and Income, Perpetuities, and Intestate Succession, 45 Ky. L.J. 111 (1956).

Vahlsing and Hudson, Inchoate Dower — An Idea Whose Time Is Past, 60 Ky. L.J. 671 (1972).

Comments, Tax Implications of the Uniform Marriage and Divorce Act: Does the Davis Rule Still Apply in Kentucky?, 66 Ky. L.J. 889 (1977-1978).

Bratt, Kentucky’s Doctrine of Advancements: A Time for Reform, 75 Ky. L.J. 341 (1986-87).

Bratt, Family Protection Under Kentucky’s Inheritance Laws: Is the Family Really Protected? 76 Ky. L.J. 387 (1987-88).

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Muyskens, Married in Kentucky: A Surviving Spouse’s Dower Right in Personalty, 96 Ky. L.J. 99 (2007).

Northern Kentucky Law Forum.

Levy, Vestiges of Sexism in Ohio and Kentucky Property Law: A Case of De Facto Discrimination, 1 N. Ky. St. L.F. 193 (1973).

Northern Kentucky Law Review.

Schneider, A Kentucky Study of Will Provisions: Implications for Intestate Succession Law, 13 N. Ky. L. Rev. 409 (1987).

Calvert, Probate Law, 21 N. Ky. L. Rev. 367 (1994).

Schneider, Recommendations for Improving Kentucky’s Inheritance Laws, 22 N. Ky. L. Rev. 317 (1995).

Mohan & Byrd, You Cannot Change 500 Years of Property Law at 5:00 P.M. on a Friday — Dower as Applied in Kentucky., 33 N. Ky. L. Rev. 335 (2006).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Disclaimer of Transfer at Death, Form 230.17.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Dower and Curtesy Exemption, § 254.00.

Caldwell’s Kentucky Form Book, 5th Ed., Surviving Spouse’s Renunciation of Will, Form 230.12.

Petrilli, Kentucky Family Law, Business Transactions, § 15.4.

Petrilli, Kentucky Family Law, Personal Rights and Privileges Resulting from Marriage, § 12.6.

392.030. Actual possession by deceased spouse not necessary for dower or curtesy.

If the deceased spouse, during the coverture, was seized in law of the fee simple of any real estate, then the surviving spouse may have dower or curtesy in that real estate, although the deceased spouse never had actual possession.

History. 2134: amend. Acts 1974, ch. 386, § 77.

Research References and Practice Aids

Northern Kentucky Law Review.

Schneider, Recommendations for Improving Kentucky’s Inheritance Laws, 22 N. Ky. L. Rev. 317 (1995).

392.040. Lands in which surviving spouse to have no dower or curtesy.

  1. The surviving spouse shall not have dower or curtesy in land sold but not conveyed by the deceased spouse before marriage, nor in land sold in good faith after marriage to satisfy an encumbrance created before marriage or created by deed in which the surviving spouse joined, or to satisfy a lien for the purchase money. If, however, there is a surplus of the land or proceeds of sale after satisfying the lien, surviving spouse may have dower or curtesy out of that surplus of the land or compensation out of the surplus of the proceeds, unless they were received or disposed of by the decedent in his lifetime.
  2. If the decedent held land by executory contract only, the surviving spouse shall not have dower or curtesy in the land, unless decedent owned such an equitable right at the time of his death.

History. 2135, 2142: amend. Acts 1974, ch. 386, § 78.

NOTES TO DECISIONS

1.Mortgage or Lien.

Where the husband’s land was sold under a mortgage in which the wife had joined, and general creditors of the husband joined in the suit, the sum realized at the sale should be applied first to the mortgage debt and the wife was entitled to assignment of potential rights of dower out of the remainder which could not be levied upon by the general creditors. Potter v. Skiles, 114 Ky. 132 , 70 S.W. 301, 24 Ky. L. Rptr. 910 , 1902 Ky. LEXIS 146 ( Ky. 1902 ), op. withdrawn, sub. op. in part, 114 Ky. 132 , 71 S.W. 627, 24 Ky. L. Rptr. 1457 , 1903 Ky. LEXIS 300 ( Ky. 1903 ).

The wife, having joined in the mortgage or deed creating the lien to satisfy which sale is made, is not endowed of the land. In such a situation, the wife has dower rights in the surplus, but she does not have to be made a party in the foreclosure sale. Morgan v. Wickliffe, 115 Ky. 226 , 72 S.W. 1122, 24 Ky. L. Rptr. 2104 , 1903 Ky. LEXIS 95 ( Ky. 1903 ). See Nelson v. Dunn, 215 Ky. 292 , 284 S.W. 1084, 1926 Ky. LEXIS 711 ( Ky. 1926 ).

Where one borrows money and uses it to pay the purchase price of land bought from another the lender has no lien on the land and if it is sold during the lifetime of the husband to pay the debt created by borrowing the money, it is not a sale “to satisfy a lien for the purchase money” under this section, and the widow not having joined in the deed is entitled to dower. Hogg v. Potter, 76 S.W. 35, 25 Ky. L. Rptr. 492 , 1903 Ky. LEXIS 298 (Ky. Ct. App. 1903).

A vendor’s lien is superior to the right of dower, regardless of whether the lien is retained by statement in the deed. Chalk v. Chalk, 291 Ky. 702 , 165 S.W.2d 534, 1942 Ky. LEXIS 310 ( Ky. 1942 ).

Where the debtor husband had no present interest in the subject property at the time a purchase money mortgage interest was executed, and foreclosure occurred, the first mortgagee maintained mortgage priority over a second mortgagee; although he had a vested curtesy interest, a dower/curtesy interest, as an inchoate right, was merely an expectancy of an interest or a future interest contingent upon him surviving the debtor wife. First Union Home Equity Bank, N.A. v. Bedford Loan & Deposit Bank, 111 S.W.3d 892, 2003 Ky. App. LEXIS 178 (Ky. Ct. App. 2003).

2.Contract to Convey Prior to Marriage.

A wife is not entitled to dower in lands which her husband bound himself to convey prior to his marriage to her. Mineral Development Co. v. Hall, 115 S.W. 230 ( Ky. 1909 ).

A widow, who was the decedent’s second wife, was not entitled to dower in property of her deceased husband, in a case where the deceased husband and his first wife in a divorce settlement contracted to convey the property to their children and the contract was incorporated in the divorce judgment. North v. North, 638 S.W.2d 711, 1982 Ky. App. LEXIS 243 (Ky. Ct. App. 1982).

3.Surplus.

Where the land of the husband has been sold to satisfy purchase-money liens and mortgages, the claim of the widow is limited to the surplus realized on the sale. Helm v. Board, 114 Ky. 289 , 70 S.W. 679, 24 Ky. L. Rptr. 1037 , 1902 Ky. LEXIS 158 ( Ky. 1902 ).

Where a wife dies owning land against which there are liens and the land is sold under a court order, the lien debts should be paid and dower allotted to the husband out of the remainder after the payment of said lien debts. Hamilton's Adm'r v. Riney, 140 Ky. 476 , 131 S.W. 287, 1910 Ky. LEXIS 306 ( Ky. 1910 ).

Under this section the widow may have dower out of the surplus or compensation out of it. McClain v. McClain, 152 Ky. 206 , 153 S.W. 234, 1913 Ky. LEXIS 634 ( Ky. 1913 ).

4.Condemnation.

A wife is entitled to share in the proceeds from condemnation of her husband’s real estate by virtue of her inchoate dower right. United States ex rel. Tennessee Valley Authority v. Spiceland, 52 F. Supp. 40, 1943 U.S. Dist. LEXIS 2068 (D. Ky. 1943 ).

5.Property Settlement.

Provision in divorce judgment, carrying out property settlement agreement, which required husband to make a will leaving his estate to the divorced wife and their children, did not so divest the husband of title to his estate as to deprive second wife of her dower rights. Wides v. Wides' Ex'r, 299 Ky. 103 , 184 S.W.2d 579, 1944 Ky. LEXIS 1037 ( Ky. 1944 ).

6.Present Value.

Where the land of the husband was sold in a mortgage foreclosure, in which mortgage the wife joined, and the surplus fund was in court at the time of the death of the husband, the widow could take the present value of her dower absolutely, instead of a life estate in the fund, in the discretion of the chancellor. McClain v. McClain, 152 Ky. 206 , 153 S.W. 234, 1913 Ky. LEXIS 634 ( Ky. 1913 ).

7.Redemption.

Where the land of the husband was sold to satisfy a mortgage lien, in which mortgage the wife joined, for less than two-thirds of the appraised value, and the husband died before the expiration of the period of redemption, the widow could redeem the land as provided for in KRS 426.530 and claim her dower in the surplus. Hiller v. Nelson, 118 S.W. 292, 1909 Ky. LEXIS 490 (Ky. Ct. App. 1909).

Cited:

Smallridge v. Hazlett, 112 Ky. 841 , 23 Ky. L. Rptr. 2228 , 66 S.W. 1043, 1902 Ky. LEXIS 237 ( Ky. 1902 ); Maryland Casualty Co. v. Lewis, 276 Ky. 263 , 124 S.W.2d 48, 1939 Ky. LEXIS 509 ( Ky. 1939 ); United States v. Wood, 658 F. Supp. 1561, 1987 U.S. Dist. LEXIS 3768 (W.D. Ky. 1987 ).

Research References and Practice Aids

Kentucky Law Journal.

Vahlsing and Hudson, Inchoate Dower — An Idea Whose Time Is Past, 60 Ky. L.J. 671 (1972).

Northern Kentucky Law Review.

Mohan & Byrd, You Cannot Change 500 Years of Property Law at 5:00 P.M. on a Friday — Dower as Applied in Kentucky., 33 N. Ky. L. Rev. 335 (2006).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Dower and Curtesy Exemption, § 254.00.

392.050. Rights of surviving spouse pending assignment of dower or curtesy.

The surviving spouse shall be entitled, from the time of the deceased spouse’s death until dower or curtesy is assigned, to such share of the rents and profits of the deceased spouse’s real estate as is equal to the surviving spouse’s share in the real estate itself, under KRS 392.020 , and the surviving spouse shall hold the dwelling house, yard, garden, the stable and lot on which it stands, and an orchard, if there is one, adjoining any of the premises aforesaid, until dower or curtesy is assigned, or, in case of renunciation, under KRS 392.080 .

History. 2138: amend. Acts 1956, ch. 117, § 4; 1974, ch. 386, § 79.

NOTES TO DECISIONS

1.Purpose.

One purpose of this section is to induce the heirs to arrange for the assignment of dower, thus the widow’s failure to ask for assignment of dower did not prejudice her right to income from the husband’s dowable realty. Frasure v. Martin, 247 S.W.2d 51, 1952 Ky. LEXIS 672 ( Ky. 1952 ).

2.Profits.

The word “profits” as used in this section means the net profits left after ordinary operating expenses have been paid. Wyly v. Kallenbach, 256 Ky. 391 , 76 S.W.2d 34, 1934 Ky. LEXIS 411 ( Ky. 1934 ).

3.Rent.

The widow is entitled to one-third of the gross rents without any deductions for taxes, insurance or repairs, pending the assignment of dower to her. Morton's Ex'rs v. Morton's Ex'r, 112 Ky. 706 , 66 S.W. 641, 23 Ky. L. Rptr. 2079 , 1902 Ky. LEXIS 213 ( Ky. 1902 ). See Redmond v. Redmond's Adm'x, 91 S.W. 260, 28 Ky. L. Rptr. 1176 , 1906 Ky. LEXIS 358 (Ky. Ct. App. 1906) (decisions prior to 1956 amendment).

Where the husband died owning real estate and no dower was allotted to the surviving wife during her lifetime and the land was sold subject to her dower interests, the personal representative of the wife could recover one-third of the rents from the death of her husband to her death. But if a reasonable rental had been paid her by the grantee during the period, the personal representative could not recover anything. Cain's Adm'r v. Kentucky & I. B. & R. Co., 124 Ky. 449 , 99 S.W. 297, 30 Ky. L. Rptr. 593 , 1907 Ky. LEXIS 196 ( Ky. 1907 ) (decision prior to 1956 amendment).

The right to rents under this section is a personal privilege given to a widow (now spouse) and cannot be assigned to another. Phillips v. Williams, 130 Ky. 773 , 113 S.W. 908, 1908 Ky. LEXIS 317 ( Ky. 1908 ), overruled, Consolidation Coal Co. v. Grayson, 186 Ky. 314 , 216 S.W. 848, 1919 Ky. LEXIS 212 ( Ky. 1919 ).

The widow is not entitled to rents on that portion of the land which she occupies. Clore's Adm'r v. Clore, 215 Ky. 532 , 284 S.W. 385, 1926 Ky. LEXIS 648 ( Ky. 1926 ).

Under this section the widow is entitled to one-third of the gross rents from the husband’s dowable realty, and the taxes and repair costs for the realty are charges against the estate. Frasure v. Martin, 247 S.W.2d 51, 1952 Ky. LEXIS 672 ( Ky. 1952 ) (decision prior to 1956 amendment).

4.Royalties.

Royalties collected from oil wells drilled upon the land of the husband during his lifetime, or pursuant to a valid contract entered into with the husband during his lifetime, are “rents.” Crain v. West, 191 Ky. 1 , 229 S.W. 51, 1921 Ky. LEXIS 260 ( Ky. 1 921 ).

Where the widow, for whom dower had not been assigned, joined with the heirs in leasing the land for oil production, she was entitled to one-third of the royalties paid or to have her dower allotted. In the assignment of her dower, every value should be considered in fixing the value of the land. Lamar v. Crosby, 162 Ky. 320 , 172 S.W. 693, 1915 Ky. LEXIS 82 ( Ky. 1915 ) (decision prior to 1956 amendment).

Where the husband and wife executed a mining lease to mine coal on the husband’s land, and the mine was in operation at the time of his death, and dower had not been assigned to the wife, she was entitled to one-third of the royalties as rents and profits of her husband’s dowable real estate. The lease was not a sale and the wife was not entitled to one-half of the royalties as personalty. Williamson v. Williamson, 223 Ky. 589 , 4 S.W.2d 392, 1928 Ky. LEXIS 394 ( Ky. 1928 ) (decision prior to 1956 amendment).

The action of the widow to recover royalties is not an action for the assignment of dower, but an action which she may maintain even though no dower may have been assigned. Bartlett’s Adm’r v. Buckner’s Adm’r, 245 Ky. 645 , 54 S.W.2d 25, 1932 Ky. LEXIS 654 ( Ky. 1932 ); modified on other grounds, Bartlett v. Buckner's Adm'r, 265 Ky. 747 , 97 S.W.2d 805, 1936 Ky. LEXIS 576 ( Ky. 1936 ).

Where the husband had leased gas rights and gas had been found in paying quantities, the widow was entitled absolutely to one-third royalties derived therefrom during her lifetime after the allotment of dower in the surface rights of the real estate. Cook v. Cook's Adm'r, 261 Ky. 501 , 88 S.W.2d 27, 1935 Ky. LEXIS 686 ( Ky. 1935 ) (decision prior to 1956 amendment).

5.Lease of Widow’s Interest.

Dower may be allotted to the widow by mutual agreement between her and the heirs; in such an event, she may lease her interest to a stranger. Meredith v. Meredith, 193 Ky. 192 , 235 S.W. 757, 1921 Ky. LEXIS 229 ( Ky. 192 1 ).

6.Free Rent.

Where the widow did not live with her husband on residential property at the time of his death, she was not entitled to hold the property rent free under this section. Frasure v. Martin, 247 S.W.2d 51, 1952 Ky. LEXIS 672 ( Ky. 1952 ).

7.Right of Quarantine.

This section definitely fixes the widow’s right of quarantine. Beach v. Hopperton's Ex'r, 303 Ky. 272 , 196 S.W.2d 894, 1946 Ky. LEXIS 789 ( Ky. 1946 ).

Failure of the surviving spouse to ask for allotment of his interest under KRS 392.020 does not affect his right under this section to quarantine. Johnson v. Ducobu, 251 S.W.2d 992, 1952 Ky. LEXIS 954 ( Ky. 1952 ).

The surviving husband is entitled to the privilege of quarantine. Johnson v. Ducobu, 251 S.W.2d 992, 1952 Ky. LEXIS 954 ( Ky. 1952 ).

8.Tenant by Will.

The widow who continues to live in the home after the death of her husband under this section is a tenant by will until dower is assigned. Jordan v. Sheridan, 149 Ky. 783 , 149 S.W. 1028, 1912 Ky. LEXIS 719 ( Ky. 1912 ).

9.Effect of Mortgage.

When the wife joins her husband in a mortgage on his land she only gives up her dower rights insofar as they are covered by the mortgage, if the mortgage does not cover rents and profits, she is entitled to such rents and profits, after the death of her husband, as given by this section, until divested thereof by legal proceedings. Mayfield v. Wright, 107 Ky. 530 , 54 S.W. 864, 21 Ky. L. Rptr. 1255 , 1900 Ky. LEXIS 136 ( Ky. 1900 ).

Cited:

Consolidation Coal Co. v. Grayson, 186 Ky. 314 , 216 S.W. 848, 1919 Ky. LEXIS 212 ( Ky. 1919 ); Oster’s Ex’r v. Ohlman, 187 Ky. 341 , 219 S.W. 187, 1920 Ky. LEXIS 125 ( Ky. 1920 ); Clore’s Adm’r v. Clore, 215 Ky. 532 , 284 S.W. 385, 1926 Ky. LEXIS 648 ( Ky. 1926 ); Bartlett v. Buckner’s Adm’r, 265 Ky. 747 , 97 S.W.2d 805, 1936 Ky. LEXIS 576 ( Ky. 1936 ); Moore v. Ramsey, 272 Ky. 582 , 114 S.W.2d 1101, 1938 Ky. LEXIS 165 ( Ky. 1938 ); Logan v. Logan, 296 S.W.2d 479, 1956 Ky. LEXIS 212 ( Ky. 1956 ); Hall v. Hall, 328 S.W.2d 541, 1959 Ky. LEXIS 129 ( Ky. 1959 ).

Research References and Practice Aids

Kentucky Law Journal.

Bratt, Family Protection Under Kentucky’s Inheritance Laws: Is the Family Really Protected? 76 Ky. L.J. 387 (1987-88).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Dower and Curtesy Exemption, § 254.00.

Petrilli, Kentucky Family Law, Property Rights, § 14.3.

392.060. Dower need not be allotted from all parcels.

Where the lands are not severally held by different devisees or purchasers, dower need not be assigned out of each separate portion, but an equitable allotment may be made in one (1) or more parcels in lieu of the whole.

History. 2141.

NOTES TO DECISIONS

1.Purpose.

The purpose of this section was to change the common-law rule that dower had to be assigned out of each parcel of land. Smith v. American Tobacco Co., 149 Ky. 591 , 149 S.W. 927, 1912 Ky. LEXIS 671 ( Ky. 1912 ).

The purpose of this section was to prevent circuity of action. Smith v. American Tobacco Co., 149 Ky. 591 , 149 S.W. 927, 1912 Ky. LEXIS 671 ( Ky. 1912 ).

2.Application.

This section is applicable if the lands of a decedent are held by only one devisee or purchaser. Dougherty v. United States, 292 F.2d 331, 1961 U.S. App. LEXIS 3942 (6th Cir. Ky. 1961 ).

3.Multiple Devisees or Purchasers.

If the lands of the decedent are held by more than one devisee or purchaser, the widow must take her dower out of each tract. Dougherty v. United States, 292 F.2d 331, 1961 U.S. App. LEXIS 3942 (6th Cir. Ky. 1961 ).

4.Part of Land Sold.

Where the husband sold 100 acres off of his 400 acre tract of land, the widow should be assigned her dower out of the 300 acre tract as she could be fully endowed out of it and it was to her benefit to be so endowed and no hardship was caused anyone thereby. Morgan v. Conn, 66 Ky. 58 , 1867 Ky. LEXIS 123 ( Ky. 1867 ) (decided under prior law). See Lawson v. Morton, 36 Ky. 471 , 1838 Ky. LEXIS 88 ( Ky. 1838 ) (decided under prior law).

Where the husband owned two tracts of land and sold one of them by general warranty deed and died possessed of the unsold tract, the widow must accept her entire dower out of the unsold tract if there was sufficient land to provide dower for her. Richmond v. Harris, 102 Ky. 389 , 43 S.W. 703, 19 Ky. L. Rptr. 1443 , 1897 Ky. LEXIS 132 ( Ky. 1897 ).

Where the wife does not join in the deed and the husband sells the land without warranty and dies owning other land the widow cannot be required to take her dower out of the land falling to the heirs, but should be assigned her dower separately out of the land that was sold and the land that descended to the heirs. Smith v. American Tobacco Co., 149 Ky. 591 , 149 S.W. 927, 1912 Ky. LEXIS 671 ( Ky. 1912 ).

Where husband had title to land placed in son’s name, to secure loan from son, and prior to husband’s death a part of the land was sold to an innocent purchaser without the wife’s jointure, the wife was entitled to an allotment of equivalent dower in other real estate. Chalk v. Chalk, 291 Ky. 702 , 165 S.W.2d 534, 1942 Ky. LEXIS 310 ( Ky. 1942 ).

Research References and Practice Aids

Cross-References.

Procedure for allotment of dower, KRS 381.135 .

392.070. Recovery of dower or curtesy from heir, devisee or purchaser — Value of — Rents.

When a surviving spouse recovers dower or curtesy against the heir or devisee or purchaser from the decedent, the dower or curtesy shall be according to the value of the estate when received by the heir, devisee or purchaser, and shall not include, in the estimated value, any permanent improvements which the heir, devisee or purchaser has made on the land. Against the heir or devisee or his alienee the surviving spouse’s claim for rent shall not exceed rent for five (5) years before the action, and against a purchaser from the decedent the surviving spouse’s claim shall be only from the commencement of the action. In either case it shall continue up to final recovery. If, after action has been brought, the surviving spouse or tenant dies before recovery, the rent may be recovered by the surviving spouse’s representative or against the tenant’s heirs, devisees and representatives.

History. 2139: amend. Acts 1974, ch. 386, § 80.

NOTES TO DECISIONS

1.Value.

When a gross sum in lieu of dower has been allotted the widow it should be based upon the value of the land at the time it was transferred to the purchaser by her husband. Hogg v. Hensley, 100 Ky. 719 , 39 S.W. 247, 19 Ky. L. Rptr. 44 , 1897 Ky. LEXIS 47 ( Ky. 1897 ).

In allotting dower in land sold by the husband during coverture, the allotment should be made with reference to the value at the time of the sale by the husband without reference to improvements made by the purchaser. Ewell v. Tye, 76 S.W. 875, 25 Ky. L. Rptr. 976 , 1903 Ky. LEXIS 297 (Ky. Ct. App. 1903).

2.Improvements.

Oil wells are not improvements within the purview of this section. Bartlett v. Buckner's Adm'r, 265 Ky. 747 , 97 S.W.2d 805, 1936 Ky. LEXIS 576 ( Ky. 1936 ).

3.Rents.

The widow is entitled to rents against the purchaser of the husband from the time she commences her action. Yancy v. Smith, 59 Ky. 408 , 1859 Ky. LEXIS 126 ( Ky. 1859 ).

4.Interest.

The widow is entitled to interest upon a gross sum in lieu of dower from the time that she filed her suit therefor. Hogg v. Hensley, 100 Ky. 719 , 39 S.W. 247, 19 Ky. L. Rptr. 44 , 1897 Ky. LEXIS 47 ( Ky. 1897 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Allotment by Surviving Spouse against Decedent Spouse’s Devisees or Heirs, Form 254.06.

Caldwell’s Kentucky Form Book, 5th Ed., Report of Commissioners, Form 254.11.

392.080. Surviving spouse may renounce will — Form to use when renouncing will — Share of the surviving spouse in such case — When devise or bequest is in addition to dower or curtesy.

    1. When a husband or wife dies testate, the surviving spouse may, though under full age, release what is given to him or her by will, if any, and receive his or her share under KRS 392.020 as if no will had been made, except that in such case the share in any real estate of which the decedent or anyone for the use of the decedent was seized of an estate in fee simple at the time of death shall be only one-third (1/3) of such real estate. Such relinquishment shall be acknowledged before an officer authorized to administer oaths under the laws of this state and evidenced by the officer’s certificate. The relinquishment and certificate shall be in substantially the following form:
    2. To be effective, such relinquishment and certificate shall be filed both with the clerk of the court which admitted the will of the deceased spouse to probate and the county clerk of the county where the will of the deceased spouse was admitted to probate, within six (6) months after the admission of the will to probate. If, within those six (6) months, an action contesting the will is brought, the surviving spouse need not make such relinquishment until within six (6) months succeeding the time when the action is disposed of. Provided, however, the period for renunciation may be extended not exceeding six (6) additional months by order entered by the district court upon application of the surviving spouse for such extension within six (6) months after the date of probate.
    I, _____________________________________________________________________ , am the surviving spouse of _____________________________________________________________________ . Except as provided in KRS 392.080 (2), I hereby release what is given to me by the will of my said deceased spouse. I understand I will now receive the share to which I am entitled pursuant to KRS 392.080 . _____________________________________________________________________ Surviving Spouse THE STATE OF _____________________________________________________________________ COUNTY OF _____________________________________________________________________ Subscribed to and acknowledged before me by _____________________________________________________________________ , the surviving spouse of _____________________________________________________________________ , this _______________________________________ day of _______________________________________ . _____________________________________________________________________ (Officer’s signature and capacity)
  1. Subsection (1) does not preclude the surviving spouse from receiving his or her share under KRS 392.020 , in addition to any bequest or devise to him or her by will, if such is the intention of the testator, plainly expressed in the will or necessarily inferable from the will.

History. 1404: amend. Acts 1956, ch. 117, § 3; 1972, ch. 168, § 7; 1976 (Ex. Sess.), ch. 14, § 352, effective January 2, 1978; 1978, ch. 384, § 513, effective June 17, 1978; 2010, ch. 21, § 10, effective July 15, 2010.

NOTES TO DECISIONS

1.Renunciation of Will.

A renunciation of the husband’s will, by the widow, upon the condition that she dies within a three-month period, is valid where she dies within the three-month period. McCallister v. Brand's Heirs, 50 Ky. 370 , 1850 Ky. LEXIS 71 ( Ky. 1850 ) (decided under prior law).

Where the husband, during his lifetime, conveyed property in trust for the use and benefit of his wife, and then died testate, she could renounce the provisions of the will and claim her dower and distributable share of his estate. Worsley's Ex'r v. Worsley, 55 Ky. 455 , 1855 Ky. LEXIS 63 ( Ky. 1855 ) (decided under prior law).

The interest of a widow can be neither increased nor diminished by the will and a widow who renounces the will of her deceased husband has no right to have land, directed by the will to be sold and the proceeds of the sale distributed, treated as personalty, and distributed. Barnett's Adm'r v. Barnett's Adm'r, 58 Ky. 254 , 1858 Ky. LEXIS 45 ( Ky. 1858 ) (decided under prior law).

A widow is not entitled to her dower rights unless she renounces her deceased husband’s will even though the amount she would receive under the will would not be equal to the value of her dower and distributable share. Bayes v. Howes, 113 Ky. 465 , 68 S.W. 449, 24 Ky. L. Rptr. 281 , 1902 Ky. LEXIS 71 ( Ky. 1902 ).

When a widow renounces her husband’s will she is in the same position as if the will had never been executed and probated and she cannot appeal from an order probating the will having no further interest in the will. Thompson v. Thompson, 134 Ky. 757 , 121 S.W. 641, 1907 Ky. LEXIS 347 ( Ky. 1907 ).

The rule requiring the widow to elect whether to take under the will of her deceased husband or under KRS 392.020 appertains only to property that may be the subject of a devise. Landers v. Landers, 151 Ky. 206 , 151 S.W. 386, 1912 Ky. LEXIS 774 ( Ky. 1912 ).

When the widow renounces the will of her husband it is just the same as if no will had been made and relates back to the time of her husband’s death. Franzell's Ex'r v. Franzell, 153 Ky. 171 , 154 S.W. 912, 1913 Ky. LEXIS 790 ( Ky. 1913 ).

Renunciation of will by widow makes unnecessary construction of clause devising property to her. Crawford v. Crawford, 290 Ky. 542 , 162 S.W.2d 4, 1942 Ky. LEXIS 445 ( Ky. 1942 ).

Distributable share of husband or wife may not be divested by will of deceased spouse, if renunciation is made. Truitt v. Truitt's Adm'r, 290 Ky. 632 , 162 S.W.2d 31, 1942 Ky. LEXIS 454 ( Ky. 1942 ).

Husband cannot, by will, defeat widow’s dower right, since widow may renounce the will. Wides v. Wides' Ex'r, 299 Ky. 103 , 184 S.W.2d 579, 1944 Ky. LEXIS 1037 ( Ky. 1944 ).

Where a spouse dies testate, the surviving spouse takes nothing under KRS 392.020 , except as provided by this section in the event of renunciation. Hedden v. Hedden, 312 S.W.2d 891, 1958 Ky. LEXIS 241 ( Ky. 1958 ).

A husband is precluded not only from making gifts during his lifetime to defeat the dower interests of his wife, but he is also prohibited from disposing of his property by will to defeat dower because, in such a case, the widow can renounce the will and take her interest as provided by KRS 392.020 . Harris v. Rock, 799 S.W.2d 10, 1990 Ky. LEXIS 95 ( Ky. 1990 ).

If a surviving spouse is not satisfied with the provisions under the will, this section permits the surviving spouse to renounce the will of the deceased spouse, and to receive as her portion of the estate her dower interest. Hannah v. Hannah, 824 S.W.2d 866, 1992 Ky. LEXIS 14 ( Ky. 1992 ).

If the surviving spouse fails to renounce the will, she loses her right to dower. Hannah v. Hannah, 824 S.W.2d 866, 1992 Ky. LEXIS 14 ( Ky. 1992 ).

Although two spouses had executed mutual wills and a will contract “not to revoke or change their respective wills,” the surviving spouse could, upon the death of her husband, renounce her late husband’s will and claim her share as if he had died intestate because the will contract addressed revoking and changing the parties’ respective wills and was silent as to renouncing the decedent’s will. Bauer v. Piercy, 912 S.W.2d 457, 1995 Ky. App. LEXIS 213 (Ky. Ct. App. 1995).

Appellate court found that a husband’s lack of compliance with KRS 392.080 invalidated his attempted renunciation of his late wife’s will. Bagby v. Koch, 98 S.W.3d 521, 2002 Ky. App. LEXIS 1919 (Ky. Ct. App. 2002).

2.— Time Limit.

Where the condition of the deceased husband’s estate is such that the widow cannot make an intelligent choice as to whether to take under the will or to renounce its provisions, the chancellor should postpone the election to such time as will permit her to make an intelligent choice, even beyond the 12-month (now six-month) period. Smither v. Smither's Ex'r, 72 Ky. 230 , 1872 Ky. LEXIS 37 ( Ky. 1872 ) (decided under prior law).

The widow must renounce the will within 12 (now six) months of its probate, if she has not renounced within that time, she takes as a legatee under the will. Bayes v. Howes, 113 Ky. 465 , 68 S.W. 449, 24 Ky. L. Rptr. 281 , 1902 Ky. LEXIS 71 ( Ky. 1902 ).

The will must be renounced by the widow within the 12-month (now six-month) period and ignorance of the law is no excuse. Logsdon v. Haney, 74 S.W. 1073, 25 Ky. L. Rptr. 245 (1903).

A renunciation of a will executed by a widow is valid even though it is not filed with the clerk until after the death of the widow, if it is filed within the 12-month (now six-month) period. Georgetown Nat'l Bank v. Ford, 215 Ky. 472 , 285 S.W. 218, 1926 Ky. LEXIS 741 ( Ky. 1926 ). See McCallister v. Brand's Heirs, 50 Ky. 370 , 1850 Ky. LEXIS 71 ( Ky. 1850 ).

Court did not err in allowing widow an extension of time within which to elect whether she would take under her husband’s will since she was a party defendant in a suit asking for settlement of her husband’s estate and the condition of estate was such that an intelligent choice could not be made within the prescribed time. Brewer's Ex'r v. Smith, 242 Ky. 175 , 45 S.W.2d 1036, 1932 Ky. LEXIS 234 ( Ky. 1932 ).

A widow’s failure to renounce will within 12-month (now six-month) statutory period after probation was equivalent to a declaration of election to take under the will and was as binding as a renunciation would have been, if made. Moise v. Moise's Ex'r, 302 Ky. 843 , 196 S.W.2d 607, 1946 Ky. LEXIS 764 ( Ky. 1946 ).

Court was without power to grant testator’s widow additional time to determine whether or not she wished to renounce will, after the expiration of the 12-month (now six-month) statutory period, where application therefore was not made within the 12-month period prescribed for the election. Moise v. Moise's Ex'r, 302 Ky. 843 , 196 S.W.2d 607, 1946 Ky. LEXIS 764 ( Ky. 1946 ).

Where an intelligent election by the surviving spouse is not possible within one year (now six months) after the probate of a will, the chancellor may extend the time for such election on motion made before expiration of the one-year period. Mann v. Peoples-Liberty Bank & Trust Co., 256 S.W.2d 489, 1953 Ky. LEXIS 739 ( Ky. 1953 ).

Action of surviving spouse challenging will of deceased husband was properly dismissed where her renunciation was filed more than 12 months after the probate of the will. Harlow v. Harlow, 551 S.W.2d 230, 1977 Ky. LEXIS 461 ( Ky. 1977 ).

Where a husband failed to make a timely renunciation of a decedent’s will in the manner required by KRS 392.080(1), the Circuit Court correctly ruled that the husband’s claim to a surviving spouse’s elective share of the decedent’s estate was barred. Henderson v. Thomas, 129 S.W.3d 853, 2004 Ky. App. LEXIS 56 (Ky. Ct. App. 2004).

3.— Acknowledgment.

This section, requiring the acknowledgment of a renunciation of a will before the clerk, was substantially complied with by the subscription of the signature to the document in the presence of the clerk under oath. Hackworth v. Flinchum, 475 S.W.2d 140, 1971 Ky. LEXIS 65 ( Ky. 1971 ).

4.— Withdrawal Of.

A widow who renounces the will of her husband and elects to relinquish the bequests made to her and take her statutory share can thereafter withdraw the renunciation and election and take the bequests made in the will only with the consent of a court of equity in a proper case and upon proper showing. Craven v. Craven, 181 Ky. 428 , 205 S.W. 406, 1918 Ky. LEXIS 541 ( Ky. 1918 ).

5.— Effect on Devisees and Legatees.

When the widow renounces the will and thereby relinquishes devises or bequests made to her, those devises and bequests should be used to make whole those devisees or legatees whom her renunciation disappoints. Ruh's Ex'rs v. Ruh, 270 Ky. 792 , 110 S.W.2d 1097, 1937 Ky. LEXIS 170 ( Ky. 1937 ).

When a widow renounces the will of her husband it renders the will inoperative only as to the widow. The will remains in effect as to other devisees and legatees named therein and should be carried out as far as possible. Ruh's Ex'rs v. Ruh, 270 Ky. 792 , 110 S.W.2d 1097, 1937 Ky. LEXIS 170 ( Ky. 1937 ).

Where testator left estate to wife for her life with remainder over, the remainder estate was precipitated when wife renounced the will. Farmers Bank & Capital Trust Co. v. Morgan, 308 Ky. 748 , 215 S.W.2d 842, 1948 Ky. LEXIS 1030 ( Ky. 1948 ).

6.— Insane Widow.

An affidavit renouncing the will filed by the committee of a widow who is insane is sufficient, and the court should, and has the power to, renounce the will for her if it is to her advantage to do so. Miller v. Keown, 176 Ky. 117 , 195 S.W. 430, 1917 Ky. LEXIS 28 ( Ky. 1917 ), overruled, Lockhard v. Brown, 536 S.W.2d 318, 1976 Ky. LEXIS 72 ( Ky. 1976 ).

An insane widow may ask the court to make an election for her as to whether she should take under the will, and the court may do so. Ramsey's Ex'r v. Ramsey, 243 Ky. 202 , 47 S.W.2d 1059, 1932 Ky. LEXIS 73 ( Ky. 1932 ).

7.— Multiple Wills.

The renunciation of the provisions of one will does not prevent the widow from claiming under a previous will. Murphy's Ex'r v. Murphy, 65 S.W. 165, 23 Ky. L. Rptr. 1460 , 1901 Ky. LEXIS 372 (Ky. Ct. App. 1901).

Where married woman made two wills, the first leaving all her property to her husband, and the later one leaving all her property to her nieces, the husband’s renunciation of the later will did not preclude him from contesting the probate of that will and seeking to have the first will probated. Smith v. Ridner, 293 Ky. 66 , 168 S.W.2d 559, 1943 Ky. LEXIS 571 ( Ky. 1943 ).

8.— Property in Other States.

Where a decedent resident in Kentucky has property in another state, the widow’s election in Kentucky whether or not to take under the will is binding upon her as to the property located in the other state. Mann v. Peoples-Liberty Bank & Trust Co., 256 S.W.2d 489, 1953 Ky. LEXIS 739 ( Ky. 1953 ).

9.— Effect on Power of Trustee.

The renunciation of the will by the widow has no effect upon the power given by the will to trustee to sell real estate. Wachs v. Security Trust Co., 287 Ky. 303 , 152 S.W.2d 969, 1941 Ky. LEXIS 537 ( Ky. 1941 ).

10.— Ignorance of Rights.

Where the widow is ignorant of her rights under this section and signs a paper releasing those rights and electing to take a child’s share, the court will set aside the writing and it will not be construed as a relinquishment of her dower and distributable rights. Evans' Adm'r v. Evans, 74 S.W. 224, 24 Ky. L. Rptr. 2412 , 24 Ky. L. Rptr. 2421 , 1903 Ky. LEXIS 500 (Ky. Ct. App. 1903).

11.— Estoppel.

The appointment of the widow as administratrix with the will annexed and her undertaking to execute the instrument does not estop her from renouncing the provisions of the will within the 12-month (now six-month) period where she has converted none of the devise to her own use. Smith's Adm'r v. Smith, 13 Ky. Op. 124, 1884 Ky. LEXIS 160 (Ky. Ct. App. Dec. 4, 1884) (decided under prior law).

The widow who accepts a part of the personal property of her deceased husband given to her by his will on the date of appraisement is not thereby estopped from later renouncing the will as such acceptance is not an election to take under the will. Brown's Ex'r v. Brown, 58 S.W. 993, 22 Ky. L. Rptr. 840 , 1900 Ky. LEXIS 718 ( Ky. 1900 ).

A widow who executes a writing agreeing to take under the will may nevertheless renounce the will within the 12-month (now six-month) period. But, under these circumstances, she cannot renounce the will to the prejudice of the personal representative whom she may have misled. Williams v. Williams, 161 Ky. 55 , 170 S.W. 490, 1914 Ky. LEXIS 7 ( Ky. 1914 ).

The widow by qualifying as executrix or trustee under the will does not relinquish her right to renounce the will and she may continue as executrix or trustee after renouncing the will. Mann v. Peoples-Liberty Bank & Trust Co., 256 S.W.2d 489, 1953 Ky. LEXIS 739 ( Ky. 1953 ).

12.— Spousal Exemption.

A surviving spouse who renounces the decedent’s will is not entitled to the $7500 spousal exemption allowed by KRS 391.030 . Brown v. Sammons, 743 S.W.2d 23, 1988 Ky. LEXIS 7 ( Ky. 1988 ).

13.— Will Prior to Marriage.

Where the husband made his will before marriage and it contained no provision for the wife, she need not renounce it. She had her rights as if the husband had died intestate. Loughborough's Ex'r v. Loughborough's Dev., 53 Ky. 549 ( Ky. 1854 ) (decided under prior law).

14.Acceptance of Will.

The widow who does not renounce the provisions of the will takes the devises subject to a charge made in the will in favor of another. Huhlien v. Huhlien, 87 Ky. 247 , 8 S.W. 260 ( Ky. 1888 ) (decided under prior law).

A widow who accepts the devise and bequest made to her in her deceased husband’s will is not entitled to dower in undevised real estate. Smith v. Perkins, 148 Ky. 387 , 146 S.W. 758, 1912 Ky. LEXIS 446 ( Ky. 1912 ).

Widow who accepts under husband’s will thereby surrenders her right to claim dower in land which her husband sold during the coverture by deeds in which she did not join. Perry v. Wilson, 183 Ky. 155 , 208 S.W. 776, 1919 Ky. LEXIS 451 ( Ky. 1919 ).

A widow accepting the benefits of the will cannot claim any right against the estate inconsistent therewith, and her devise is, like all others, chargeable with its proportionate share of the debts and cost of administration if the undevised estate be not sufficient therefor. Maynard's Adm'r v. Maynard, 285 Ky. 75 , 146 S.W.2d 343, 1940 Ky. LEXIS 597 ( Ky. 1940 ).

Where will gave wife a small tract of land, with a store and its merchandise located thereon, and the wife did not renounce the will, she was not entitled to share in other property as to which the husband died intestate. Ray v. Ray, 298 Ky. 162 , 182 S.W.2d 664, 1944 Ky. LEXIS 879 ( Ky. 1944 ).

A widow who accepts devise or bequest under her husband’s will cannot claim the rights of a surviving spouse in any undevised property of the husband. Hammond v. McReady, 355 S.W.2d 674, 1962 Ky. LEXIS 77 ( Ky. 1962 ).

In the absence of a contrary intent affirmatively appearing in the will, a widow who accepts a devise or bequest under her husband’s will cannot claim the rights of a surviving spouse in any undevised property of the husband. Rhodus v. Proctor, 433 S.W.2d 625, 1968 Ky. LEXIS 278 ( Ky. 1968 ).

Where plaintiff/spouse did not renounce the will as required by this section and instead, she probated the will and accepted and received the benefits of the will, by doing this she lost her right to her dower interest, and took as any other devisee; because she had no dower interest, she had no standing to assert her claim that a fraudulent transfer was made to defeat her dower interest. Hannah v. Hannah, 824 S.W.2d 866, 1992 Ky. LEXIS 14 ( Ky. 1992 ).

15.Presumption that Devise Is in Lieu of Dower.

Where the husband by will gives all his property to his wife subject to the payment of his debts, it does not manifest an intent that she is to have dower rights in addition to the rights conferred by the will even though there is sufficient personal property to pay the debts. Schuette v. Bowers, 40 F.2d 208, 1930 U.S. App. LEXIS 3134 (2d Cir. N.Y. 1930), limited, Wilson v. Bowers, 57 F.2d 682, 1932 U.S. App. LEXIS 4052 (2d Cir. N.Y. 1932).

Under this section, the legal presumption is that a devise to the wife is in lieu of dower and she is compelled to elect between the two, unless a contrary intent is plainly expressed in the will or necessarily inferable therefrom. Voss v. Stortz, 177 Ky. 541 , 197 S.W. 964, 1917 Ky. LEXIS 619 ( Ky. 1917 ).

Under this section the legal presumption is that a devise to the widow is in lieu of dower and she is compelled to elect between the two, unless a contrary intention is plainly expressed in the will or necessarily inferable therefrom. Wilson v. Fisher, 298 Ky. 790 , 184 S.W.2d 104, 1944 Ky. LEXIS 1002 ( Ky. 1944 ).

Where a husband makes a provision for his wife in his will, it will be presumed that such devise was in lieu of the interest given her by KRS 392.020 , unless a contrary intention appears from the will or is necessarily inferable. Morguelan v. Morguelan's Ex'r, 307 Ky. 94 , 209 S.W.2d 824, 1948 Ky. LEXIS 686 ( Ky. 1948 ).

16.— Contrary Intent of Will.

Where one clause of husband’s will devised certain real estate to widow, and residuary clause devised remainder of husband’s estate “to those persons entitled to receive the same under the laws of the State of Kentucky,” the widow could claim her dower rights in the residuary estate, in addition to the real estate specifically devised to her, since the direction of the testator that the residue go to those persons entitled to the same under the law constituted a plain expression of the intention of the testator, within the meaning of subsection (2) of this section, that the widow should have her dower in addition to the specific devise. Wilson v. Fisher, 298 Ky. 790 , 184 S.W.2d 104, 1944 Ky. LEXIS 1002 ( Ky. 1944 ).

17.Subscribing Witness.

The words “subscribing witness” as used in this section refer to any person who witnesses the renunciation and subscribes his name thereto. Lockhard v. Brown, 536 S.W.2d 318, 1976 Ky. LEXIS 72 ( Ky. 1976 ).

18.Fraudulent Transfer of Property.

The estate cannot bring an action to rescind a transfer that was made with the intent to deprive the wife of her dower interest; only the widow individually had such right. Hannah v. Hannah, 824 S.W.2d 866, 1992 Ky. LEXIS 14 ( Ky. 1992 ).

Where the surviving spouse did not renounce the will and instead probated the will and accepted benefits under it, she had no standing to assert that transfers of assets before the death of the decedent were fraudulent attempts to defeat her dower. Sanders v. Pierce, 979 S.W.2d 457, 1998 Ky. App. LEXIS 54 (Ky. Ct. App. 1998).

Court of appeals properly ruled that a surviving husband's statutory spousal interest did not attach to life insurance proceeds because they were never part of the decedent's estate since the decedent retained an absolute right to change the beneficiary; the decedent's decision to exercise the right to change the beneficiary could not be fraud on the husband's statutory interest because she never owned the proceeds of the insurance policies, and thus, they never become part of her estate. Bays v. Kiphart, 486 S.W.3d 283, 2016 Ky. LEXIS 175 ( Ky. 2016 ).

Life-insurance beneficiary has only a contingent interest in the benefits of the policy, and where the insured retains the right to change the beneficiary, that right is virtually absolute; where a dying spouse exercises that right to remove the surviving spouse as a named beneficiary and instead names a trust for the benefit of the minor child of the marriage, the surviving spouse cannot claim fraud on his or her statutory spousal interest. Bays v. Kiphart, 486 S.W.3d 283, 2016 Ky. LEXIS 175 ( Ky. 2016 ).

Cited:

Trustees of Church Home v. Morris, 99 Ky. 317 , 18 Ky. L. Rptr. 384 , 36 S.W. 2, 1896 Ky. LEXIS 97 ( Ky. 1896 ); Cochran’s Ex’x v. Commonwealth, 241 Ky. 656 , 44 S.W.2d 603, 1931 Ky. LEXIS 147 , 78 A.L.R. 710 ( Ky. 1931 ); Ruh’s Ex’rs v. Ruh, 270 Ky. 792 , 110 S.W.2d 1097, 1937 Ky. LEXIS 170 ( Ky. 1937 ); Baldwin’s Coex’rs v. Curry, 272 Ky. 827 , 115 S.W.2d 333, 1938 Ky. LEXIS 204 ( Ky. 1938 ); Ray v. Ray, 298 Ky. 162 , 182 S.W.2d 664, 1944 Ky. LEXIS 879 ( Ky. 1944 ); Mann v. Peoples-Liberty Bank & Trust Co., 256 S.W.2d 489, 1953 Ky. LEXIS 739 ( Ky. 1953 ); Dougherty v. United States, 175 F. Supp. 339, 1959 U.S. Dist. LEXIS 2948 (E.D. Ky. 1959 ); Richie v. Richie, 476 S.W.2d 190, 1972 Ky. LEXIS 380 ( Ky. 1972 ); Holtzclaw v. Arneau, 638 S.W.2d 704, 1982 Ky. LEXIS 294 ( Ky. 1982 ); McElroy v. Taylor, 977 S.W.2d 929, 1998 Ky. LEXIS 131 ( Ky. 1998 ); Cave v. O’Bryan, — S.W.3d —, 2004 Ky. App. LEXIS 105 (Ky. Ct. App. 2004).

Opinions of Attorney General.

The terms of a will would be applicable as to the distribution of an estate unless there is a renunciation of the will pursuant to this section, which would make the $3,500 (now $15,000) exemption provisions of KRS 391.030 applicable. OAG 73-477 (opinion prior to 1974 amendment of KRS 391.030 ).

Exempt property under KRS 391.030 should not be charged against the one-half of the surplus personalty distributable under KRS 392.020 when the surviving spouse had renounced the will under this section, since former subsection (4) of KRS 391.030 specifically allowed the $3500 (now $15,000) personalty exemption for a surviving spouse who had renounced a will under this section, and, were that $3500 to be considered as a set-off against the surplus under KRS 392.020 , there would in fact have been no exemption; accordingly, if, after payment of the subject $3500, and the debts and expenses, there remained any personalty for further distribution, the surviving spouse was entitled to “an absolute estate in one-half” of any such surplus in accord with KRS 392.020. OAG 81-256 . (opinion prior to 1982 amendments of KRS 391.030)

Research References and Practice Aids

Kentucky Law Journal.

Evans, Concerted Wills — A Possible Device for Avoiding the Widows Privilege of Renunciation, 33 Ky. L.J. 79 (1945).

Funk, Trusts — Will the Creation of a Trust Defeat a Spouse’s Statutory Allowances?, 34 Ky. L.J. 296 (1946).

Daugherty, Acceleration of Contingent Remainders upon the Widow’s Renunciation, 38 Ky. L.J. 291 (1950).

Bensing, Inter Vivos Trusts and the Election Right of a Surviving Spouse, 42 Ky. L.J. 616 (1954).

Vahlsing and Hudson, Inchoate Dower — An Idea Whose Time Is Past, 60 Ky. L.J. 671 (1972).

Comments, Child Support, Life Insurance, and the Uniform Marriage and Divorce Act, 67 Ky. L.J. 239 (1978-79).

Kentucky Law Survey, Catron, Wills, Probate and Real Property Law, 71 Ky. L.J. 333 (1982-83).

Bratt, Family Protection Under Kentucky’s Inheritance Laws: Is the Family Really Protected? 76 Ky. L.J. 387 (1987-88).

Muyskens, Married in Kentucky: A Surviving Spouse’s Dower Right in Personalty, 96 Ky. L.J. 99 (2007).

Northern Kentucky Law Review.

Calvert, Probate Law, 21 N. Ky. L. Rev. 367 (1994).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Answer Claiming Specific Enforcement of Contract to Make a Will Would be Inequitable to Widow, Form 214.05.

Caldwell’s Kentucky Form Book, 5th Ed., Motion and Order for Extension of Time in which to Renounce, Form 230.12.

Caldwell’s Kentucky Form Book, 5th Ed., Order Filing Renunciation of Will (Another Form), Form 254.18.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for County Clerks, § 14.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Dower and Curtesy Exemption, § 254.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Wills, § 230.00.

Caldwell’s Kentucky Form Book, 5th Ed., Surviving Spouse’s Renunciation of Will, Form 230.12.

Caldwell’s Kentucky Form Book, 5th Ed., Surviving Spouse’s Renunciation of Will, Form 254.16.

Petrilli, Kentucky Family Law, Personal Rights and Privileges Resulting from Marriage, § 12.6.

392.090. All property claims barred by divorce or adultery.

  1. Absolute divorce bars all claim of either husband or wife to the property, real and personal, of the other after his or her decease.
  2. If either spouse voluntarily leaves the other and lives in adultery, the offending party forfeits all right and interest in and to the property and estate of the other, unless they afterward become reconciled and live together as husband and wife.

History. 2133, 2144.

NOTES TO DECISIONS

1.Application.

Subsection (2) of this section is not applicable to a fund recovered for the wrongful death of the husband under KRS 411.130 . Napier's Adm'r v. Napier's Adm'r, 210 Ky. 163 , 275 S.W. 379, 1925 Ky. LEXIS 642 ( Ky. 1925 ).

This section does not apply to a legacy or devise made by one spouse to the other in a will. Baldwin v. Cook, 232 Ky. 365 , 23 S.W.2d 601, 1930 Ky. LEXIS 10 ( Ky. 1930 ).

2.Absolute Divorce.

An absolute divorce bars the claim of the wife to dower in land which the husband sold during coverture by deed in which she did not join. McKean v. Brown, 83 Ky. 208 , 7 Ky. L. Rptr. 183 , 1885 Ky. LEXIS 57 (Ky. Ct. App. 1885) (decided under prior law).

This section makes an absolute divorce a bar to every kind of a claim by one of the divorced parties in the property of the other after his or her death. Bromley v. McCall, 174 Ky. 415 , 192 S.W. 507, 1917 Ky. LEXIS 201 ( Ky. 1917 ).

3.Abandonment.

Abandonment, even though permanent, does not bar the claim of the wife against the estate of the deceased husband for dower. Only absolute divorce is covered by this section. Meyers' Adm'r v. Meyers, 244 Ky. 248 , 50 S.W.2d 81, 1932 Ky. LEXIS 392 ( Ky. 1932 ).

4.Adultery.

Under this section the adultery need not consist of a constant living in the state of adultery, but only of a periodic commission of the offense. Bond v. Bond's Adm'r, 150 Ky. 389 , 150 S.W. 363, 1912 Ky. LEXIS 890 ( Ky. 1912 ).

It is not essential to defeat the widow’s right to dower that she voluntarily leave her husband and live in adultery, but she may, by her adulterous conduct, while living with her husband, forfeit her right to dower. Ferguson v. Ferguson, 153 Ky. 742 , 156 S.W. 413, 1913 Ky. LEXIS 921 ( Ky. 1913 ). See Sergent v. North Cumberland Mfg. Co., 112 Ky. 888 , 66 S.W. 1036, 23 Ky. L. Rptr. 2226 , 1902 Ky. LEXIS 236 ( Ky. 1902 ).

Under KRS 392.090(2), the phrase “lives in adultery” required a showing of more than one instance of adultery, and it had be recurring, a sustained or notorious activity. Because proof showed wife engaged in adultery only once before husband’s death, statutory requirement was not met and she was not barred from interest in husband’s estate. Griffin v. Rice, 381 S.W.3d 198, 2012 Ky. LEXIS 143 ( Ky. 2012 ).

5.— Preemption By Federal Law.

Subsection (2) of this section was preempted by federal law (ERISA) which provided that benefits of deferred profit sharing plan would automatically go to spouse of employee unless such spouse consented in a notarized writing to someone else other than the spouse being named as beneficiary of the plan. Moore v. Philip Morris Cos., 8 F.3d 335, 1993 U.S. App. LEXIS 26601 (6th Cir. Ky. 1993 ).

6.Life Insurance.

Where the wife takes out a policy of life insurance upon the life of her husband and then voluntarily abandons him and lives in adultery with another, she does not thereby forfeit her right to the sum due upon the policy at the death of her husband. Bradley v. Bradley's Adm'r, 178 Ky. 239 , 198 S.W. 905, 1917 Ky. LEXIS 720 ( Ky. 1917 ).

This section would not apply to divest an ex-wife of her interest as beneficiary of her ex-husband’s life insurance policy. Ping v. Denton, 562 S.W.2d 314, 1978 Ky. LEXIS 326 ( Ky. 1978 ).

7.Homestead Rights.

A divorce extinguishes all right of the wife to homestead, therefore, a divorced wife cannot claim a homestead for herself and infant child in a tract of land mortgaged by the husband, upon the ground that she did not unite in the mortgage and that the husband refuses to claim the exemption. Skinner v. Walker, 98 Ky. 729 , 34 S.W. 233, 17 Ky. L. Rptr. 1286 , 1896 Ky. LEXIS 27 ( Ky. 1896 ).

Cited:

Sapp v. Sapp, 301 Ky. 849 , 193 S.W.2d 443, 1946 Ky. LEXIS 580 ( Ky. 1946 ); United States v. Wood, 658 F. Supp. 1561, 1987 U.S. Dist. LEXIS 3768 (W.D. Ky. 1987 ).

Research References and Practice Aids

Cross-References.

Divorce from bed and board does not bar dower, KRS 403.050 .

Kentucky Law Journal.

Comments, Tax Implications of the Uniform Marriage and Divorce Act: Does the Davis Rule Still Apply in Kentucky?, 66 Ky. L.J. 889 (1977-1978).

Bratt, Family Protection Under Kentucky’s Inheritance Laws: Is the Family Really Protected? 76 Ky. L.J. 387 (1987-88).

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Hill, No-Fault Death: Wedding Inheritance Rights to Family Values., 94 Ky. L.J. 319 (2005/2006).

Muyskens, Married in Kentucky: A Surviving Spouse’s Dower Right in Personalty, 96 Ky. L.J. 99 (2007).

Treatises

Petrilli, Kentucky Family Law, Dissolution Decree, §§ 24.5, 24.22.

Petrilli, Kentucky Family Law, Torts and Crimes, § 18.2.

392.100. Dower or curtesy rights in event of bigamy.

If a person violates KRS 530.010 the person’s first spouse shall, on his conviction, be endowed of one-third (1/3) part of his real estate for life and an absolute interest in one-third (1/3) part of his other estate, to be allotted and recovered as dower or curtesy in other cases. A violator of KRS 530.010 shall forfeit her claim to dower or his claim to curtesy in their first spouse’s estate.

History. 1217: amend. Acts 1974, ch. 386, § 81; 1974, ch. 406, § 313, effective January 1, 1975.

Legislative Research Commission Note.

This section was amended by two 1974 acts which do not appear to be in conflict and have been compiled together.

Research References and Practice Aids

Cross-References.

Bigamous marriage is void, KRS 402.020 .

Bigamy under Penal Code, KRS 530.010 .

Kentucky Law Journal.

Vahlsing and Hudson, Inchoate Dower — An Idea Whose Time Is Past, 60 Ky. L.J. 671 (1972).

Bratt, Family Protection Under Kentucky’s Inheritance Laws: Is the Family Really Protected? 76 Ky. L.J. 387 (1987-88).

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Northern Kentucky Law Forum.

Levy, Vestiges of Sexism in Ohio and Kentucky Property Law: A Case of De Facto Discrimination, 1 N. Ky. St. L.F. 193 (1973).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Dower and Curtesy Exemption, § 254.00.

392.110. Default or collusive judgment no bar to dower or curtesy — Collusive assignment does not bind heir.

  1. The surviving spouse shall not be barred of dower or curtesy by reason of any judgment rendered by default or collusion against the decedent, if the surviving spouse would be entitled to dower or curtesy had there been no such judgment.
  2. No heir shall be bound by any collusive or ex parte assignment of dower or curtesy to the surviving spouse, except so far as the surviving spouse shows himself to have been justly entitled to the dower or curtesy.

History. 2140: amend. Acts 1974, ch. 386, § 82.

NOTES TO DECISIONS

1.Application.

This section relates only to judgments directly affecting a husband’s title and has no application to a money judgment followed by sale on execution. Walters v. Anderson, 361 S.W.2d 31, 1962 Ky. LEXIS 226 ( Ky. 1962 ).

392.120. Jointure — When a bar to dower or curtesy — Waiver of — Indemnity for loss of.

  1. A conveyance or devise of real or personal estate, by way of jointure, may bar the surviving spouse’s interest in the property and estate of the deceased spouse. If, however, the jointure is made before marriage without the surviving spouse’s consent, or during the surviving spouse’s infancy the surviving spouse may, within twelve (12) months after decedent’s death, waive the jointure by written relinquishment, acknowledged or proved before, and left with, the county clerk, and have dower, curtesy, or share of the estate as provided by KRS 392.020 . A copy of such relinquishment shall be filed with the clerk of the court in which probate was made. When the surviving spouse so demands and receives dower, curtesy or such share of decedent’s estate, the estate conveyed or devised in lieu of dower or curtesy shall determine and revert to the heirs or representatives of the grantor or devisor.
  2. Where the surviving spouse is lawfully deprived of jointure, or any part of jointure, and not through any act of the surviving spouse’s own, the surviving spouse shall have indemnity for jointure out of decedent’s estate.

History. 2136, 2137: amend. Acts 1974, ch. 386, § 83; 1976 (Ex. Sess.), ch. 14, § 353, effective January 2, 1978; 1978, ch. 384, § 514, effective June 17, 1978.

NOTES TO DECISIONS

1.Jointure.

The term “jointure” means such an estate as may be conveyed or devised to the wife in lieu of dower. Pepper v. Thomas, 85 Ky. 539 , 4 S.W. 297, 9 Ky. L. Rptr. 122 , 1887 Ky. LEXIS 73 ( Ky. 1887 ) (decided under prior law).

The term “jointure” means generally a competent livelihood for the wife in the husband’s property, to take effect after his death; it means an estate conveyed or devised to the wife in lieu of dower. Maynard's Adm'r v. Maynard, 285 Ky. 75 , 146 S.W.2d 343, 1940 Ky. LEXIS 597 ( Ky. 1940 ).

2.Application.

The law of jointure does not apply where the widow has the right of election between receiving her statutory share in the estate or accepting the benefits of the will. Morguelan v. Lynch, 244 S.W.2d 433, 1951 Ky. LEXIS 1208 ( Ky. 1951 ).

3.Jointure by Acceptance of Devise or Bequest.

Where the husband dies testate and devises and bequeaths his entire estate to his wife and she accepts the estate under the will it is a jointure and she cannot claim dower in lands the husband sold during his lifetime. Grider v. Eubanks, 75 Ky. 510 , 1877 Ky. LEXIS 111 ( Ky. 1877 ) (decided under prior law).

A devise made by a husband in his will to his wife and received and used by her is a “jointure” under this section and bars the right of the wife to dower in intestate real estate of which the husband died seized. Smith v. Perkins, 148 Ky. 387 , 146 S.W. 758, 1912 Ky. LEXIS 446 ( Ky. 1912 ).

4.Renunciation of Jointure Contract.

Where a wife, uninfluenced by fraud or deceit, and upon a sufficient consideration, freely and voluntarily agrees to accept a conveyance or devise or property in lieu of her dower and distributable share of her husband’s estate, and the husband executes his part of the contract by making the devise or conveyance to her, she cannot, after his death, renounce the contract. Redwine's Ex'r v. Redwine, 160 Ky. 282 , 169 S.W. 864, 1914 Ky. LEXIS 474 ( Ky. 1914 ).

Cited:

Schuette v. Bowers, 40 F.2d 208, 1930 U.S. App. LEXIS 3134 (6th Cir. 1930).

Research References and Practice Aids

Cross-References.

Devisee to have contribution from other devisees when dower taken out of his share, KRS 394.480 .

Joinder by husband in wife’s deed bars curtesy, KRS 404.030 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Order Filing Renunciation of Will, Form 254.17.

Caldwell’s Kentucky Form Book, 5th Ed., Waiver of Jointure, Form 254.15.

Petrilli, Kentucky Family Law, Business Transactions, § 15.4.

392.130. Release of dower or curtesy upon sale of estate of infant or mentally disabled spouse.

The spouse of an infant spouse, or of a spouse judicially declared mentally disabled, if the spouse not under disability is of the age of eighteen (18) years, or if not, with the approval of the Circuit Court, on such terms as it may deem equitable, may unite with his guardian or conservator, or with the commissioner of the court, in the conveyance of the real estate of the spouse under disability, so as to release the inchoate right of dower or curtesy of the spouse not under disability, when a sale and conveyance of the real estate are ordered to be made by the guardian or conservator, or by the commissioner or other officer of the court. An infant spouse may also be permitted by the Circuit Court to unite with his adult spouse in the conveyance of the adult spouse’s real estate without terms, or on such terms as may be deemed equitable, so as to release the inchoate right of dower or curtesy of the infant spouse. If, in judicial proceedings to sell the real estate of an infant spouse, or of a spouse judicially declared mentally disabled, his spouse is made a party defendant, and by answer, and on privy examination in open court or by a judge of a court in which such proceedings are pending, or by a commissioner appointed by the court to take the case, the spouse not under disability consents to a sale of the property, free from the inchoate right of dower or curtesy of the spouse not under disability, either without terms or on terms designated by the spouse not under disability, the court may, if it deems the terms of such consent equitable, order the sale of such property, free from the inchoate right of dower or curtesy, upon the terms of consent proposed by that spouse.

History. 2146: amend. Acts 1974, ch. 386, § 84; 1982, ch. 141, § 102, effective July 1, 1982.

Compiler’s Notes.

This section was amended by § 116 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

NOTES TO DECISIONS

1.Mortgage.

This statute confers authority upon the Circuit Court to permit the infant wife to join in a deed conveying his property and includes the authority to permit the infant wife to join her husband in mortgaging the property when it is made to appear to the court that the best interest of herself and her husband will be served. Ex parte Roush, 281 Ky. 733 , 137 S.W.2d 352, 1940 Ky. LEXIS 99 ( Ky. 1940 ).

2.Surrender of Curtesy.

Infant husband joining with adult wife in conveyance of her realty effectually surrenders his curtesy. Jesse v. Kinser, 274 Ky. 821 , 120 S.W.2d 654, 1938 Ky. LEXIS 349 ( Ky. 1938 ).

3.Condemnation.

A wife is entitled to share in the proceeds from condemnation of her husband’s real estate by virtue of her inchoate dower right. United States ex rel. Tennessee Valley Authority v. Spiceland, 52 F. Supp. 40, 1943 U.S. Dist. LEXIS 2068 (D. Ky. 1943 ).

Cited:

Mark v. Mark, 313 Ky. 536 , 233 S.W.2d 100, 1950 Ky. LEXIS 932 ( Ky. 1950 ).

392.140. Sale or mortgage of dower or curtesy interest of mentally disabled spouse.

Whenever a married person has become a confirmed mentally disabled person, the Circuit Court of the county in which is situated land belonging to the spouse of such disabled person may, upon the petition of the spouse of the mentally disabled person, adjudge the sale and conveyance, or the mortgage, of the inchoate right of dower or curtesy of the person under disability. The mentally disabled person and his guardian or conservator, if he has one, shall be made defendants to the action; if he has no guardian or conservator, the court shall appoint an attorney to defend for him, to whom the court shall make a reasonable allowance to be paid by the spouse of the mentally disabled person. A description of the land shall be given in the petition and the evidence of title of the spouse of the mentally disabled person filed therewith. If the court is satisfied by the proof that the mentally disabled spouse is a confirmed mentally disabled person, it may adjudge the sale and conveyance, or mortgage, of her inchoate right of dower or his inchoate right to curtesy in said land, and if the mentally disabled spouse has a guardian or conservator, the court may direct that he unite with the spouse of the mentally disabled person in the deed or mortgage; if the mentally disabled spouse has no guardian or conservator, the court shall appoint a commissioner who shall unite with the spouse of the mentally disabled person in the deed or mortgage. Before any judgment pursuant to this section shall be rendered, the spouse of the mentally disabled person, with at least two (2) good sureties, shall execute before the court a covenant to the Commonwealth for the benefit of the mentally disabled spouse, to be approved by the court, that the mentally disabled spouse will be paid the value of his right of dower or curtesy in the land should such right thereafter become complete.

History. 2145: amend. Acts 1942, ch. 152, §§ 2, 3; 1974, ch. 386, § 85; 1982, ch. 141, § 103, effective July 1, 1982.

Compiler’s Notes.

This section was amended by § 117 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

NOTES TO DECISIONS

1.Present Value.

In estimating the value of the wife’s inchoate right of dower under this section, the amount of a mortgage on the land which she united with her husband in executing should be deducted from the value of the land. Fichtner v. Fichtner's Assignee, 88 Ky. 355 , 11 S.W. 85, 10 Ky. L. Rptr. 924 , 1889 Ky. LEXIS 39 ( Ky. 1889 ) (decided under prior law).

2.Becomes Complete.

The present value of wife’s inchoate right of dower, “becomes complete,” within the meaning of the statute, when the sale is made under the judgment and perfected by a conveyance depriving her of all right in the land. Fichtner v. Fichtner's Assignee, 88 Ky. 355 , 11 S.W. 85, 10 Ky. L. Rptr. 924 , 1889 Ky. LEXIS 39 ( Ky. 1889 ) (decided under prior law).

Research References and Practice Aids

Cross-References.

Sale or mortgage of wife’s real estate when husband is incompetent, KRS 404.050 .

Kentucky Law Journal.

Vahlsing and Hudson, Inchoate Dower — An Idea Whose Time Is Past, 60 Ky. L.J. 671 (1972).

CHAPTER 393 Escheats

393.010. Definitions for chapter — Application of chapter. [Repealed]

HISTORY: 1605a, 1610: amend. Acts 1960, ch. 142, § 1; 1962, ch. 144, § 1; 1994, ch. 58, § 2, effective March 10, 1994; 1994, ch. 276, § 9, effective July 15, 1994; 1998, ch. 94, § 1, effective July 15, 1998; 2003, ch. 95, § 1, effective June 24, 2003; 2012, ch. 32, § 2, effective July 12, 2012; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.015. Use of abandoned property funds to support Commonwealth postsecondary education prepaid tuition trust fund. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 2000, ch. 163, § 9, effective July 14, 2000) was repealed by Act 2005, ch. 173, Pt. XXI, § 2, effective March 20, 2005.

393.020. Property subject to escheat.

If any property having a situs in this state has been devised or bequeathed to any person and is not claimed by that person or by his heirs, distributees, or devisees within three (3) years after the death of the testator, or if the owner of any property having a situs in this state dies without heirs or distributees entitled to it and without disposing of it by will, it shall vest in the state, subject to all legal and equitable demands. Any property abandoned by the owner, except a perfect title to a corporeal hereditament, shall vest in the state, subject to all legal and equitable demands. Any property that vests in the state under this section shall be liquidated, and the proceeds, less costs, fees, and expenses incidental to all legal proceedings of the liquidation shall be paid to the department.

History. 1606; 1994, ch. 58, § 3, effective March 10, 1994; 1994, ch. 83, § 1, effective July 15, 1994; 2003, ch. 95, § 7, effective June 24, 2003.

NOTES TO DECISIONS

1.Constitutionality.

Escheat laws are constitutional so far as they vest title to the property in the Commonwealth and are unconstitutional so far as they vest title in private persons or corporations. Bank of Louisville v. Board of Trustees, 83 Ky. 219 , 5 S.W. 735, 7 Ky. L. Rptr. 185 ( Ky. 1885 ) (decided under prior law). See Louisville School Board v. Bank of Kentucky, 86 Ky. 150 , 5 S.W. 739, 9 Ky. L. Rptr. 433 , 1887 Ky. LEXIS 133 ( Ky. 1887 ) (decided under prior law).

This section is constitutional. Anderson Nat'l Bank v. Reeves, 293 Ky. 735 , 170 S.W.2d 350, 1942 Ky. LEXIS 12 ( Ky. 1942 ).

2.Waiting Period.

The eight-year (now three years, pursuant to the 2003 amendments) waiting period applies only to devised property. Commonwealth use of Board of Education v. Schultz's Unknown Heirs, 268 Ky. 806 , 105 S.W.2d 1067, 1937 Ky. LEXIS 537 ( Ky. 1937 ).

Where a diligent search has failed to produce heirs of an intestate, the property escheats without a waiting period. Commonwealth use of Board of Education v. Schultz's Unknown Heirs, 268 Ky. 806 , 105 S.W.2d 1067, 1937 Ky. LEXIS 537 ( Ky. 1937 ).

3.Party to File Suit.

KRS 393.180 provides that an action to recover any sum due the state under this section shall be instituted on the relation of the commissioner of revenue by the county attorney of the county in which such property is located and the attorney general is not the proper party to file the suit. Commonwealth ex rel. Breckinridge v. Monroe Co., 378 S.W.2d 809, 1964 Ky. LEXIS 213 ( Ky. 1964 ).

4.Excess Lands Held by Corporation.

Lands held by a corporation in excess of the constitutional and statutory limits do not come under the provisions of this section. Commonwealth v. Wisconsin Chair Co., 119 Ky. 500 , 84 S.W. 535, 27 Ky. L. Rptr. 170 , 1905 Ky. LEXIS 21 ( Ky. 1905 ). See Commonwealth v. Farmers' Bank of Kentucky, 84 S.W. 732, 27 Ky. L. Rptr. 153 (1905); Commonwealth use of Louisville School Board v. Chicago, S. L. & N. O. R. Co., 124 Ky. 497 , 99 S.W. 596, 30 Ky. L. Rptr. 673 , 1907 Ky. LEXIS 207 ( Ky. 1907 ); Commonwealth v. Louisville Property Co., 128 Ky. 790 , 109 S.W. 1183, 33 Ky. L. Rptr. 225 , 1908 Ky. LEXIS 99 ( Ky. 1908 ).

5.Abandoned Property.

Where property removed from safety deposit boxes had not been adjudged to be actually abandoned, it had not yet escheated to the state and master commissioner was under no statutory duty to sell it because it was not tangible personal property required by KRS Chapter 393 to be liquidated. Commonwealth ex rel. Geary v. Johnson, 668 S.W.2d 569, 1984 Ky. App. LEXIS 489 (Ky. Ct. App. 1984).

This chapter does not intend the term “presumed abandoned” to be synonymous with “abandoned”; rather, property is abandoned in the statutory sense only when it has been actually, as opposed to presumptively, abandoned. Commonwealth ex rel. Geary v. Johnson, 668 S.W.2d 569, 1984 Ky. App. LEXIS 489 (Ky. Ct. App. 1984).

Until the property has been adjudged by a court of competent jurisdiction to be actually abandoned, the property does not escheat to the state, and until that time the owner still is entitled to regain its possession. Commonwealth ex rel. Geary v. Johnson, 668 S.W.2d 569, 1984 Ky. App. LEXIS 489 (Ky. Ct. App. 1984).

6.State Acquires All Rights.

By escheat, the state acquires all of the rights of the former owner and will pass such title to a purchaser. Elmondorff v. Carmichael, 13 Ky. 472 , 1823 Ky. LEXIS 118 ( Ky. 1823 ) (decided under prior law).

Cited:

Williams v. Farmers Stockyard, Inc., 297 S.W.3d 586, 2009 Ky. App. LEXIS 126 (Ky. Ct. App. 2009).

Opinions of Attorney General.

Weapons accumulated by the county coroner which were used in suicides should be treated as abandoned personal property which escheats to the state under the statute, to be liquidated and the proceeds paid to the department of revenue. OAG 67-8 .

If the money in the Circuit Court clerk’s special account representing the amount due under an outstanding juror’s check paid pursuant to KRS 28.180 (repealed) is unclaimed for seven years after the check is issued there is a presumption of abandonment and the money escheats to the state. OAG 74-583 .

Where a considerable amount of prisoners’ clothing and money was abandoned at the Jefferson County jail operated by the metropolitan correctional services department, it was escheatable to the state under this section and KRS 393.066 . OAG 79-646 .

Research References and Practice Aids

Kentucky Law Journal.

Leathers, Rethinking Jurisdiction and Notice in Kentucky, 71 Ky. L.J. 755 (1982-83).

393.022. Escheat of United States savings bonds to Commonwealth.

  1. As used in this section:
    1. “Book-entry bond” means a savings bond maintained by the United States Treasury in electronic or paperless form as a computer record;
    2. “Definitive bond” means a savings bond issued by the United States Treasury in paper form;
    3. “Final maturity” means the date a United States savings bond ceases to earn interest; and
    4. “United States savings bond” means a book-entry bond or definitive bond issued by the United States Treasury.
  2. This section shall apply to the escheat of United States savings bonds to the Commonwealth of Kentucky.
  3. A United States savings bond held or owing in this state by any person, or issued or owed in the course of a holder’s business, or by a state or other government, governmental subdivision, agency, or instrumentality, and all proceeds thereof, shall be presumed abandoned in this state if:
    1. The last known address of the owner of the United States savings bond is in this state; and
    2. The United States savings bond has remained unclaimed and unredeemed for three (3) years after final maturity.
  4. United States savings bonds which are presumed abandoned under subsection (3) of this section shall escheat to the Commonwealth of Kentucky three (3) years after becoming abandoned property, and all property rights and legal title to and ownership of the United States savings bonds or proceeds from the bonds, including all rights, powers, and privileges of survivorship of any owner, co-owner, or beneficiary, shall vest solely in the Commonwealth of Kentucky according to the procedure set forth in subsections (5) to (8) of this section.
  5. If no claim has been filed in accordance with the provisions of this chapter, the department shall commence a civil action in the Franklin Circuit Court for a determination that United States savings bonds have escheated to the Commonwealth of Kentucky and the Commonwealth of Kentucky is the owner of the savings bonds.
    1. The department shall provide notice of the action by publication in at least two (2) newspapers of statewide circulation in accordance with the provisions of KRS 424.110 to 424.215 .
    2. The notice shall list all persons to be served and shall notify those persons that:
      1. The person has been sued in a named court;
      2. The person must answer the petition or other pleading or otherwise respond, on or before a specified date not less than fifty (50) days after the date the notice is first published; and
      3. If the person does not answer or otherwise respond, the petition or other pleading shall be taken as true and judgment, the nature of which shall be stated, will be rendered accordingly.
  6. Prior to providing notice by publication as required by subsection (6) of this section, the Treasurer or his or her designee shall file with the court an affidavit stating all the following that apply:
      1. The residences of all named persons sought to be served, if known;
      2. The names of all persons whose residences are unknown after reasonable effort to ascertain them; and
      3. The specific efforts made to ascertain the unknown residences;
    1. That the affiant has made a reasonable but unsuccessful effort to ascertain the names and residences of any persons sought to be served as unknown parties, and the specific efforts made to ascertain the names and residences;
    2. That the department is unable to obtain service of summons on the persons in the state; and
    3. That the case is one in which the department, with due diligence, is unable to serve summons on the person in this state and:
      1. The case relates to personal property in this state, if any person has or claims an interest in the property; or
      2. In which the relief demanded consists wholly or partly in excluding the person from any interest in the property.
  7. If:
    1. No person files a claim or appears at the hearing to substantiate a claim; or
    2. The court determines that a claimant is not entitled to the property claimed by the claimant;

      then the court, if satisfied by the evidence that the department has substantially complied with the laws of the Commonwealth, shall enter a judgment that the subject United States savings bonds have escheated to the Commonwealth of Kentucky, and all property rights and legal title to and ownership of the United States savings bonds or proceeds from the bonds, including all rights, powers, and privileges of survivorship of any owner, co-owner, or beneficiary, shall vest solely in the Commonwealth of Kentucky.

  8. The department shall redeem the United States savings bonds escheated to the Commonwealth, and the proceeds from the redemption shall be deposited into a separate subsidiary account of the abandoned property fund.
  9. After a judgment of escheat has been entered pursuant to subsection (8) of this section, the Treasurer or his or her designee may, at his or her discretion, make full or partial payment of requests for the proceeds of United States savings bonds to persons to whom, in the opinion of the Treasurer or his or her designee, the Commonwealth should in fairness and equity allow payment.

History. Enact. Acts 2014, ch. 102, § 4, effective April 10, 2014.

393.025. Owner of abandoned property loses income or increments accruing thereafter. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 142, § 5; 1972, ch. 274, § 164; 1988, ch. 23, § 190, effective January 1, 1989) was repealed by Acts 1998, ch. 560, § 9, effective July 15, 1998.

393.030. Disposition of property subject to escheat.

  1. The personal representative of a person, any part of whose property is not distributed by will, and who died without heirs or distributees entitled to it shall settle their accounts within one (1) year after qualifying, and pay to the department the proceeds of all personal property, first deducting the proper legal liabilities of the estate.
  2. If the whole personal property cannot be settled and the accounts closed within one year, the settlement as far as practicable, shall then be made and the proceeds paid to the department, and the residue shall be settled and paid as soon thereafter as can be properly done.
  3. The personal representative shall take possession of the real property of the decedent not disposed of by his will, and rent it out from year to year until it is otherwise legally disposed of, and pay the net proceeds to the department.
  4. The personal representative shall also make out and transmit to the department a description of the quantity, quality, and estimated value of the real property and its probable annual profits.

History. 1607; 1994, ch. 58, § 4, effective March 10, 1994.

NOTES TO DECISIONS

1.Constitutionality.

This section is constitutional. Anderson Nat'l Bank v. Reeves, 293 Ky. 735 , 170 S.W.2d 350, 1942 Ky. LEXIS 12 ( Ky. 1942 ).

393.040. Procedure if legacy or devise is not claimed.

If any devisee or legatee, or his heir, devisee, or distributee, has failed for seven (7) years to claim his legacy or devise, the personal representative of the testator, or other person possessing it shall, after deducting the legal liabilities thereon, pay and deliver it and the net profits from it to the department.

History. 1608; 1994, ch. 58, § 5, effective March 10, 1994; 1994, ch. 83, § 2, effective July 15, 1994.

Legislative Research Commission Note.

(7/15/94). This section was amended by 1994 Ky. Acts chs. 58 and 83 which do not appear to be in conflict and have been codified together.

NOTES TO DECISIONS

1.Constitutionality.

This section is constitutional. Anderson Nat'l Bank v. Reeves, 293 Ky. 735 , 170 S.W.2d 350, 1942 Ky. LEXIS 12 ( Ky. 1942 ).

393.050. Presumption of death after seven years — Disposition of property.

Except as provided in KRS 422.132 , when a person owning any property having a situs in this state is not known to be living for seven (7) successive years, and neither he nor his heirs, devisees, or distributees can be located or proved to have been living for seven (7) successive years, he shall be presumed to have died without heirs, devisees, or distributees, and his property shall be liquidated and the proceeds, less costs incident to the liquidation and any legal proceedings, and the liabilities which have been properly claimed and approved against it, shall be paid to the department.

History. 1609: amend. Acts 1994, ch. 58, § 6, effective March 10, 1994; 2002, ch. 57, § 2, effective July 15, 2002.

NOTES TO DECISIONS

1.Constitutionality.

This section is constitutional. Anderson Nat'l Bank v. Reeves, 293 Ky. 735 , 170 S.W.2d 350, 1942 Ky. LEXIS 12 ( Ky. 1942 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Order Appointing Administrator where Person Absent Seven Years, Form 234.06.

393.060. Presumption of abandonment of certain property held by bank or financial organization. [Repealed]

HISTORY: 1610: amend. Acts 1960, ch. 142, § 6; 1976, ch. 255, § 1; 1994, ch. 83, § 3, effective July 15, 1994; 1998, ch. 560, § 1, effective July 15, 1998; 2008, ch. 132, § 12, effective April 24, 2008; repealed and reenact., Acts 2009, ch. 86, § 11, effective March 24, 2009; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.062. Presumption of abandonment of unclaimed funds held by life insurance corporation. [Repealed]

HISTORY: Enact. Acts 1960, ch. 142, § 2, effective June 16, 1960; 2003, ch. 95, § 8, effective June 24, 2003; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.063. Treatment of refunds of workers’ compensation special fund assessments held by an insurance carrier and owed to an insured employer.

  1. Notwithstanding any provision of the Kentucky Revised Statutes to the contrary, refunds of workers’ compensation special fund assessments levied in accordance with KRS 342.122 shall be deemed “unclaimed refunds” if held by an insurance carrier and owed to an insured employer.
  2. For purposes of this section, “unclaimed refunds” means all unremitted workers’ compensation special fund assessments collected by a carrier, as defined in KRS 342.0011(6), in excess of the applicable special fund assessment rate, owing and unpaid to an insured employer after the Kentucky Workers’ Compensation Funding Commission has made a determination that the carrier has made a reasonable attempt to return the unclaimed refunds to the insured employer.
  3. Unclaimed refunds shall be remitted by the insurance carrier to the Kentucky Workers’ Compensation Funding Commission, created under KRS 342.1223 , and shall be credited to the benefit reserve fund, created under KRS 342.1229 , within the Kentucky Workers’ Compensation Funding Commission. Unclaimed refunds remitted to the Kentucky Workers’ Compensation Funding Commission and held by that commission for more than two (2) years shall become the property of the benefit reserve fund.
  4. The unclaimed refunds remitted as required in this section to the Kentucky Workers’ Compensation Funding Commission and held for more than two (2) years shall not thereafter be available to any party who may have a claim to the remitted unclaimed refunds, and any claims that arise under this section including claims for the remitted sums shall be forever barred against the Kentucky Workers’ Compensation Funding Commission and any carrier complying with this section.
  5. The provisions of this section shall apply to any refunds or unclaimed refunds owing and held by a carrier on or after July 15, 1998.

History. Enact. Acts 1998, ch. 449, § 1, effective July 15, 1998.

393.064. Presumption of abandonment of stock or dividend of business association. [Repealed]

HISTORY: Enact. Acts 1960, ch. 142, § 3, effective June 16, 1960; 1994, ch. 83, § 4, effective July 15, 1994; 2003, ch. 95, § 9, effective June 24, 2003; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.066. Presumption of abandonment of intangible personal property held by fiduciary. [Repealed]

HISTORY: Enact. Acts 1960, ch. 142, § 4, effective June 16, 1960; 2003, ch. 95, § 10, effective June 24, 2003; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.068. Presumption of abandonment of personal property held by federal government.

  1. All tangible personal property or intangible personal property, including choses in action in amounts certain, and all debts owed or entrusted funds or other property held by the federal government or any federal agency, or any officer, or appointee thereof, shall be presumed abandoned in this state if the last known address of the owner of the property is in this state and the property has remained unclaimed for three (3) years.
  2. The federal government or any federal agency thereof which pays or delivers abandoned property to the department under this section is relieved of all liability to the extent of the value of the property so paid or delivered for any claim which then exists or which thereafter may arise or be made in respect to the property.
  3. The federal government or any federal agency thereof may deduct from the amounts to be paid or delivered to the department the proportionate share of the actual and necessary costs of examining records and reporting such information.

History. Enact. Acts 1960, ch. 142, § 10, effective June 16, 1960; 1994, ch. 58, § 7, effective March 10, 1994; 2014, ch. 102, § 5, effective April 10, 2014.

NOTES TO DECISIONS

1.Action by State.

States had standing under their unclaimed property statutes to bring action against the Secretary of the Treasury of the United States and Comptroller General of the United States to attempt to obtain custody of moneys belonging to their citizens contained in the U.S. Treasury trust fund receipt accounts; however, the states cannot rely on their own laws to compel the disbursement of the moneys, and since federal law is supreme they must first exhaust their administrative remedies under 31 USCS, § 1322 by applying to the particular transferring administrative agencies, bureaus or offices and comply with their requirements for perfecting a claim. Alabama v. Bowsher, 734 F. Supp. 525, 1990 U.S. Dist. LEXIS 3554 (D.D.C. 1990), aff'd, 935 F.2d 332, 290 U.S. App. D.C. 166, 1991 U.S. App. LEXIS 11675 (D.C. Cir. 1991).

Opinions of Attorney General.

The commonwealth of Kentucky has the legal authority to take custody of the contents of unclaimed safety deposit boxes of closed national banks in possession of the Comptroller of the Currency. OAG 84-252 .

There is no statute of limitations applicable to the owners of unclaimed property in the possession of the Comptroller of the Currency. OAG 84-252 .

393.070. Deposits not payable on demand — When presumed abandoned. [Repealed.]

Compiler’s Notes.

This section (1610: amend. 1994, ch. 83, § 5, effective July 15, 1994) was repealed by Acts 1998, ch. 560, § 9, effective July 15, 1998.

393.072. Presumption of abandonment of property from demutualization of insurance company. [Repealed]

HISTORY: Enact. Acts 2003, ch. 95, § 6, effective June 24, 2003; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.080. Presumption of abandonment of security deposit or public utility refund.

The following funds held or owing are presumed abandoned:

  1. Any deposit of money, stocks, bonds, or other credits made to secure payment for services rendered or to be rendered, or to guarantee the performance of services or duties, or to protect against damage or harm, and the increments thereof, unless claimed by the person entitled thereto within three (3) years after the occurrence of the event that would obligate the holder or depository to return it or its equivalent.
  2. Except as provided in KRS 272.291 , any sum which a public utility has been ordered to refund and which was received for utility services rendered in this state, together with any interest thereon, less any lawful deductions, that has remained unclaimed by the person appearing on the records of the utility entitled thereto for more than three (3) years after the date it became payable in accordance with the final determination or order providing for the refund.
  3. If there remains a total of one million dollars ($1,000,000) or more in unclaimed sums one (1) year after a public utility refund became payable in accordance with the final determination or order providing for the refund, excepting sums that may eventually be claimed pursuant to KRS 272.291 , and less any lawful deductions, the Finance and Administration Cabinet shall enter into an agreement or agreements with the public utility that will allow the public utility to pay the unclaimed sums, minus the exceptions noted above, to the Kentucky State Treasurer immediately if the Attorney General determines by written opinion that a reasonable relationship exists between the source of and reason for the refund, and the workers’ compensation liability of a bankrupt employer who purportedly was self-insured, either individually or through a self-insurance group, under KRS Chapter 342. Payment of the unclaimed sums to the Kentucky State Treasurer shall constitute a complete release of the public utility from any further responsibility for the sums so paid, and from liability to any person who may have a claim to any of such sums.
  4. The Kentucky Workers’ Compensation Funding Commission shall preserve the rights of persons or ratepayers entitled to claim a refund under this section, and may utilize any funds available to the agency for the purpose of preserving those rights.

History. 1610: amend. Acts 1960, ch. 142, § 7; 1994, ch. 83, § 6, effective July 15, 1994; 1996, ch. 116, § 1, effective March 28, 1996, retroactive to February 1, 1976; 2003, ch. 95, § 11, effective June 24, 2003.

Compiler’s Notes.

Section 3 of Acts 1996, ch. 116 read: “The provisions of this Act shall expire on July 15, 1998, unless continued or modified by law, except that administration and distribution of trust accounts established prior to that date shall continue until the final payments to eligible claimants have been made.”

Section 4 of Acts 1996, ch. 116 read, “The provisions of Section 1 of this Act shall be retroactive to February 1, 1976.”

Legislative Research Commission Note.

(3/28/96). Subsections (3) and (4) of this statute were added by 1996 Ky. Acts Ch. 116, sec. 1, and “expire on July 15, 1998, unless continued or modified by law.” See 1996 Ky. Act ch. 116, sec. 3.

Opinions of Attorney General.

Worker’s compensation claimants who were working for bankrupt coal company which was closely tied to South East Coal Company through the miner’s self-insurance group since the default of SECC drained Miners’ Self Insurance Group (MSIG) of its assets, and thereby resulted in the default of the coal company to its workers, and thus there was a reasonable relationship between the source of, and reason for, the refund held by Kentucky Utility Company and the unpaid workers’ compensation liability of coal company, within the meaning of this section as amended by Acts 1996, ch. 116, § 1, such claimants were also entitled to claim benefits from the SERF Fund created from the pool of unclaimed utility rebates ordered following the Kentucky Utility Co. vs. South East Coal Company case. OAG 96-36 .

393.082. Special expendable trust fund for unclaimed sums under KRS 393.080(3) — Administration and distribution of fund — Claims procedures.

  1. Unclaimed sums delivered to the Kentucky State Treasurer pursuant to KRS 393.080(3) shall be placed in a special expendable trust fund established by the Kentucky Workers’ Compensation Funding Commission. The Kentucky Workers’ Compensation Funding Commission shall establish a separate trust account with respect to each final determination or order providing for a refund that the Attorney General determines to have a reasonable relationship to the workers’ compensation liability of a bankrupt employer.
  2. The commissioner of the Department of Workers’ Claims shall be the administrator of the resulting trust fund established pursuant to this section. The commissioner or his or her designee shall be authorized to determine the value of all workers’ compensation claims against the bankrupt employer and to prepare a comprehensive distribution plan. Eligible claimants may elect to participate in a comprehensive distribution plan in exchange for the release of all related claims against the Commonwealth and all of its cabinets, departments, offices, bureaus, agencies, officers, agents, and employees, with the exception of the special fund in the Education and Labor Cabinet. A claimant shall agree as part of a release under this section not to file any future motions to reopen the named workers’ compensation claim or claims, and not to file new claims with respect to the same injury or occupational disease.
  3. A comprehensive distribution plan for unclaimed utility refunds placed in a trust account pursuant to this section shall consist of the full payment of workers’ compensation income benefits for eligible claimants until the fund is exhausted, subject to the exceptions noted in KRS 393.080 and this section, and may include lump-sum settlements in addition to biweekly payment plans. An initial distribution shall be made to eligible claimants after the commissioner of the Department of Workers’ Claims, or the commissioner’s designee, has made an initial determination of the number of eligible claimants, the amount of income benefits due, and the amount to be retained as a reserve for pending claims. The initial distribution shall include payment of all past due income benefits, without interest, for eligible claimants.
  4. Neither the special fund nor the uninsured employers’ fund shall be considered to be claimants for the purposes of this section. Medical and related benefits shall not be considered in the valuation of the claims unless the amount available in the trust fund clearly exceeds the estimated value of income benefits for all claims. If a workers’ compensation surety bond, letter of credit, or other form of security for the payment of the workers’ compensation liabilities of a bankrupt employer has been collected by the commissioner of the Department of Workers’ Claims or the Workers’ Compensation Board for distribution to claimants in a manner to be determined by court order, it may be assumed in the valuation of the claims in a comprehensive distribution plan that the security will be distributed by the court on a pro rata basis and an appropriate deduction may be taken.
  5. In preparing the valuation of claims for inclusion in a comprehensive distribution plan, the commissioner or the commissioner’s designee shall deduct special fund payments. Settlement of a workers’ compensation claim as part of a comprehensive distribution plan under this section shall not accelerate the date on which the special fund’s liability becomes due.
  6. If the bankrupt employer ceased business operations at least three (3) years prior to establishment of a trust account pursuant to this section, only claimants who file workers’ compensation claims within sixty (60) days of the establishment of the trust account or before shall be eligible to receive payments from the trust fund.
  7. All claimants shall cooperate with information requests from the Department of Workers’ Claims concerning prior payments of workers’ compensation benefits. The commissioner of the Department of Workers’ Claims or his or her designee may subpoena witnesses, including present or past managers and officers of the bankrupt employer, and may conduct evidentiary hearings under oath relating to the past and present workers’ compensation liabilities of the bankrupt employer or information relevant to unpaid workers’ compensation benefits. Administrative subpoenas issued under the authority of the commissioner of the Department of Workers’ Claims for this purpose may be enforced in the Franklin Circuit Court.
  8. The Attorney General shall provide representation of the comprehensive distribution plan as a named defendant in the event the establishment of the trust fund is challenged.
  9. The provisions of KRS 393.080(3) or this section shall not be construed to constitute an admission of the validity of any workers’ compensation claims, nor shall these provisions be interpreted in a manner that would transfer or create liability on behalf of the commissioner of the Department of Workers’ Claims, any agency, or employee, beyond that expressly set forth in a comprehensive distribution plan.
  10. The special fund shall issue trust fund checks in the amounts and to the claimants or claimants’ representatives as directed by the commissioner of the Department of Workers’ Claims.
  11. The personnel and other costs of administering a trust fund established pursuant to this section shall be paid out of the investment income of the trust fund.
  12. Attorney fees shall be subject to the limitations and maximum amounts for the payment of attorney’s fees established by KRS 342.320 , as well as the approval of the commissioner or his or her designee.
  13. If a workers’ compensation claimant elects not to participate in a comprehensive distribution plan proposed by the commissioner of the Department of Workers’ Claims or the commissioner’s designee, that claimant shall not be entitled to any portion of the utility refund for the payment of the workers’ compensation benefits. A claimant shall have sixty (60) days following issuance of a comprehensive distribution plan in which to make an election to participate or not.

History. Enact. Acts 1996, ch. 116, § 2, effective March 28, 1996; 1996 (1st Ex. Sess.), ch. 1, § 72, effective December 12, 1996; 2010, ch. 24, § 1921, effective July 15, 2010; 2022 ch. 236, § 173, effective July 1, 2022.

Legislative Research Commission Notes.

(3/28/96). This section “expire[s] on July 15, 1998, unless continued or modified by law, except that the administration and distribution of trust accounts established prior to that date shall continue until the final payments to eligible claimants have been made.” See 1996 Ky. Acts ch. 116, sec. 3.

393.090. Presumption of abandonment of intangible personal property not otherwise covered. [Repealed]

HISTORY: 1610: amend. Acts 1960, ch. 142, § 8; 1962, ch. 144, § 2; 1966, ch. 255, § 267; 2003, ch. 95, § 12, effective June 24, 2003; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.092. Effect of property owner’s residence in another state. [Repealed]

HISTORY: Enact. Acts 1960, ch. 142, § 13, effective June 16, 1960; 1998, ch. 560, § 5, effective July 15, 1998; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.095. Unclaimed pari-mutuel tickets from quarter horse or Appaloosa racetracks. [Repealed]

HISTORY: Enact. Acts 1950, ch. 29; 1978, ch. 307, § 16, effective June 17, 1978; 1980, ch. 84, § 15, effective July 15, 1980; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.100. Property paid into court — When presumed abandoned — Reversion to municipality or consolidated local government which procured payment into court. [Repealed]

HISTORY: 1610: amend. Acts 1944, ch. 50; 2002, ch. 346, § 229, effective July 15, 2002; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.110. Administrative regulations for reports by holders of abandoned property to report to department — Posting and publication of notices. [Repealed]

HISTORY: 1611: amend. Acts 1942, ch. 156, §§ 1, 2; 1944, ch. 53, § 1; 1960, ch. 142, § 9; 1962, ch. 144, § 3; 1966, ch. 239, § 221; 1976, ch. 155, § 27; 1982, ch. 65, § 1, effective July 15, 1982; 1986, ch. 496, § 28, effective August 1, 1986; 1994, ch. 58, § 8, effective March 10, 1994; 1994, ch. 83, § 7, effective July 15, 1994; 1994, ch. 276, § 10, effective July 15, 1994; 1998, ch. 560, § 6, effective July 15, 1998; 2003, ch. 95, § 2, effective June 24, 2003; 2005, ch. 173, Pt. IA.16, § 1, effective March 20, 2005; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.115. Advertising expenses. [Repealed]

HISTORY: Enact. Acts 1960, ch. 142, § 11, effective June 16, 1960; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.117. Conditions governing enforceability of agreements to locate property presumed abandoned.

  1. An agreement by an owner, the primary purpose of which is to locate, deliver, recover, or assist in the recovery of property that is presumed abandoned, is void and unenforceable if it was entered into during the period commencing on the date that the property was presumed abandoned and extending to a time that is twenty-four (24) months after the date that the property is paid or delivered to the department. This subsection shall not apply to an owner’s agreement with an attorney to file a claim as to identified property or contest the administrator’s denial of a claim.
  2. An agreement by an owner, the primary purpose of which is to locate, deliver, recover, or assist in the recovery of property and that is not in violation of subsection (1) of this section, is enforceable only if:
    1. The agreement is in writing;
    2. The agreement provides that the fee or compensation agreed upon is an amount not more than ten percent (10%) of the value of the property collected;
    3. The agreement clearly sets forth the nature of the property and the services to be rendered;
    4. The agreement is signed by the apparent owner; and
    5. The agreement states the value of the property before and after the fee or other compensation has been deducted.
  3. An agreement covered by this section that provides for compensation that is unconscionable is unenforceable except by the owner. An owner who has agreed to pay compensation that is unconscionable, or the administrator on behalf of the owner, may maintain an action to reduce the compensation to a conscionable amount. The court may award reasonable attorney’s fees to an owner who prevails in the action.
  4. This section does not preclude an owner from asserting that an agreement covered by this section is invalid on grounds other than unconscionable compensation.
  5. An advertisement, a written communication, or an agreement concerning the location, delivery, recover, or assistance in the recovery of property reported under this chapter shall contain a provision stating that, by law, any contract provision requiring the payment of a fee for finding property that has been held by the administrator for less than twenty-four (24) months is void and not enforceable, and that fees are limited to an amount not more than ten percent (10%) of the value of the property collected.

History. Enact. Acts 1998, ch. 560, § 4, effective July 15, 1998.

393.120. Sale of property required to be liquidated to pay department. [Repealed]

HISTORY: 1612: amend. Acts 1966, ch. 239, § 222; 1976, ch. 155, § 28; 1994, ch. 58, § 9, effective March 10, 1994; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.125. Sale by department. [Repealed]

HISTORY: Enact. Acts 1998, ch. 560, § 8, effective July 15, 1998; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.130. Rights and duties of persons who have transferred property to department. [Repealed]

HISTORY: 1613: amend. Acts 1960, ch. 142, § 12; 1994, ch. 58, § 10, effective March 10, 1994; 1998, ch. 560, § 3, effective July 15, 1998; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.140. Claim of interest in property surrendered to state. [Repealed]

HISTORY: 1614: amend. Acts 1954, ch. 23; 1966, ch. 239, § 223; 1994, ch. 58, § 11, effective March 10, 1994; 1994, ch. 83, § 8, effective July 15, 1994; 1998, ch. 560, § 7, effective July 15, 1998; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.150. State Treasurer to determine claims. [Repealed]

HISTORY: 1615: amend. 1994, ch. 58, § 12, effective March 10, 1994; 1994, ch. 83, § 9, effective July 15, 1994; 1994, ch. 276, § 11, effective July 15, 1994; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.160. Appeals from decision of State Treasurer. [Repealed]

HISTORY: 1615: amend. Acts 1960, ch. 104, § 21; 1994, ch. 276, § 12, effective July 15, 1994; 2003, ch. 95, § 3, effective June 24, 2003; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.170. Property in federal custody — Determination of whether escheat has occurred.

Whenever any property escheated under this chapter by reason of actual abandonment, or death or presumption of death of the owner without leaving any person entitled to take the legal or equitable title under the laws of this state relating to wills, or descent and distribution, has been deposited with, or in the custody or under the control of, any federal court in and for any district in this state, or in the custody of any depository, clerk or other officer of such court, or has been surrendered by such court or its officers to the United States Treasury, the Circuit Court of any county in which such federal court sits shall have jurisdiction to ascertain whether an escheat has occurred, and to enter a judgment of escheat in favor of the state. This section does not authorize a judgment to require such courts, officers, agents or depositories to pay or surrender funds to this state on a presumption of abandonment as provided in KRS 393A.040 to 393A.140 .

HISTORY: 1616; 2018 ch. 163, § 91, effective July 14, 2018.

NOTES TO DECISIONS

Cited:

Commonwealth ex rel. Geary v. Johnson, 668 S.W.2d 569, 1984 Ky. App. LEXIS 489 (Ky. Ct. App. 1984).

393.180. Proceedings instituted by county attorney on relation of State Treasurer. [Repealed]

HISTORY: 1618: amend. 1994, ch. 58, § 13, effective March 10, 1994; 1994, ch. 276, § 13, effective July 15, 1994; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.190. Assistant Attorney General to aid county attorney. [Repealed]

HISTORY: 1618: amend. Acts 1962, ch. 210, § 48; 1994, ch. 58, § 14, effective March 10, 1994; 1994, ch. 276, § 14, effective July 15, 1994; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.200. State Treasurer may perform duties of county attorney.

If the county attorney declines to perform the duties imposed upon him by this chapter, they may be performed by the State Treasurer. When he considers it to the best interest of the state, the State Treasurer may institute any action authorized by this chapter to be brought by the county attorney, or join the county attorney in the active prosecution of the action.

History. 1618: amend. Acts 1976 (Ex. Sess.), ch. 17, § 49, effective January 1, 1978; 1994, ch. 58, § 15, effective March 10, 1994; 1994, ch. 276, § 15, effective July 15, 1994.

Legislative Research Commission Note.

(7/15/94). This section was amended by 1994 Ky. Acts chs. 58 and 276. Where these Acts are not in conflict, they have been codified together. Where a conflict exists, Acts ch. 276, which was last enacted by the General Assembly, prevails under KRS 446.250 .

Research References and Practice Aids

Kentucky Law Journal.

Vanlandingham, The Fee System in Kentucky Counties, 40 Ky. L.J. 275 (1952).

393.210. Property in two or more counties. [Repealed]

HISTORY: 1618: amend. Acts 1976 (Ex. Sess.), ch. 17, § 50, effective January 1, 1978; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.220. Disposition of tangible property during proceeding. [Repealed]

HISTORY: 1618; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.230. Proceeding to force payment or surrender of intangible property — To establish actual abandonment. [Repealed]

HISTORY: 1619: amend. 1994, ch. 58, § 16, effective March 10, 1994; 1994, ch. 276, § 16, effective July 15, 1994; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.240. Actions may be joined — Procedure for action. [Repealed]

HISTORY: 1619: amend. 1994, ch. 58, § 17, effective March 10, 1994; 1994, ch. 276, § 17, effective July 15, 1994; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.250. Source of payment of expenses — County attorney to collect judgments.

Any necessary expense required to be paid by the state in administering and enforcing this chapter shall be paid out of the abandoned property fund.

HISTORY: 1620: amend. Acts 1976 (Ex. Sess.), ch. 17, § 51, effective January 1, 1978; 1994, ch. 58, § 18, effective March 10, 1994; 1994, ch. 83, § 10, effective July 15, 1994; 2003, ch. 95, § 4, effective June 24, 2003; 2018 ch. 163, § 92, effective July 14, 2018.

Legislative Research Commission Note.

(7/15/94). This section was amended by 1994 Ky. Acts chs. 58 and 83. Where these Acts are not in conflict, they have been codified together. Where a conflict exists, Acts ch. 83, which was last enacted by the General Assembly, prevails under KRS 446.250 .

NOTES TO DECISIONS

Cited:

Anderson Nat’l Bank v. Reeves, 293 Ky. 735 , 170 S.W.2d 350, 1942 Ky. LEXIS 12 ( Ky. 1942 ).

393.260. Limitation of state’s action. [Repealed]

HISTORY: 1621; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.270. Person under disability, extension. [Repealed]

HISTORY: 1622; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.280. Examination of records — Promulgation of administrative regulations and rules — Delegation of State Treasurer’s authority. [Repealed]

HISTORY: 1622-1: amend. 1994, ch. 58, § 19, effective March 10, 1994; 1994, ch. 276, § 18, effective July 15, 1994; 1998, ch. 560, § 2, effective July 15, 1998; 2003, ch. 95, § 5, effective June 24, 2003; 2005, ch. 173, Pt. IA.16, § 2, effective March 20, 2005; 2010, ch. 24, § 1922, effective July 15, 2010; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.290. Civil action to enforce production of reports or the surrender of property. [Repealed]

HISTORY: 1622-1; 1994, ch. 58, § 20, effective March 10, 1994; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

393.300. Restriction on escheat of real property held by lending corporation under supervision.

No person shall institute proceedings to escheat real property the title to which was acquired by any lending corporation in satisfaction of debts previously contracted in the course of its business, or that it purchases under a judgment for any such debt in its favor, if such lending corporation is under the supervision of the Department of Financial Institutions of this state, comptroller of currency of the United States or any other duly constituted supervising banking authority, state or Federal, without first obtaining the consent of the supervising authority having supervision over that corporation.

History. 1623-1; amend. 2010, ch. 24, § 1923, effective July 15, 2010.

393.990. Penalties. [Repealed]

HISTORY: 1622-1; repealed by 2018 ch. 163, § 93, effective July 14, 2018.

CHAPTER 393A Revised Uniform Unclaimed Property Act

HISTORY: 2018 ch. 163, § 1, effective July 14, 2018.

General Provisions

393A.010. Definitions for chapter.

As used in this chapter:

  1. “Administrator” means the Kentucky State Treasurer;
  2. “Administrator’s agent”:
    1. Means a person with which the administrator contracts to conduct an examination under KRS 393A.550 to 393A.650 on behalf of the administrator; and
    2. Includes an independent contractor of the person and each individual participating in the examination on behalf of the person or contractor;
  3. “Apparent owner” means a person whose name appears on the records of a holder as the owner of property held, issued, or owing by the holder;
  4. “Business association” means a corporation, joint stock company, investment company other than an investment company registered under 15 U.S.C. secs. 80 a-1 to 80a-64, as amended, partnership, unincorporated association, joint venture, limited liability company, business trust, trust company, land bank, safe deposit company, safekeeping depository, financial organization, insurance company, federally chartered entity, utility, sole proprietorship, or other business entity, whether or not for profit;
  5. “Confidential information” means records, reports, and information that are confidential under KRS 393A.780 ;
  6. “Domicile” means:
    1. For a corporation, the state of its incorporation;
    2. For a business association whose formation requires a filing with a state, other than a corporation, the state of its filing;
    3. For a federally chartered entity or an investment company registered under 15 U.S.C. secs. 80 a-1 to 80a-64, as amended, the state of its home office; and
    4. For any other holder, the state of its principal place of business;
  7. “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities;
  8. “Electronic mail” means a communication by electronic means which is automatically retained and stored and may be readily accessed or retrieved;
  9. “Financial organization” means a savings and loan association, building and loan association, savings bank, industrial bank, bank, banking organization, or credit union;
  10. “Game-related digital content”:
    1. Means digital content that exists only in an electronic game or electronic-game platform;
    2. Includes:
      1. Game-play currency such as a virtual wallet, even if denominated in United States currency; and
      2. The following if for use or redemption only within the game or platform or another electronic game or electronic-game platform:
        1. Points sometimes referred to as gems, tokens, gold, and similar names; and
        2. Digital codes; and
    3. Does not include an item that the issuer permits to be redeemed for use outside a game or platform:
      1. For money;
      2. For goods or services that have more than minimal value; or
      3. That otherwise monetizes for use outside a game or platform;
  11. “Gift card”:
    1. Means stored-value card:
      1. The value of which does not expire;
      2. That may be decreased in value only by redemption for merchandise, goods, or services; and
      3. That, unless required by law, may not be redeemed for or converted into money or otherwise monetized by the issuer; and
    2. Includes a prepaid commercial mobile radio service, as defined in 47 C.F.R. sec. 20.3, as amended;
  12. “Holder” means a person obligated to hold for the account of, or to deliver or pay to, the owner, property subject to this chapter;
  13. “Insurance company” means an association, corporation, or fraternal or mutual-benefit organization, whether or not for profit, engaged in the business of providing life endowments, annuities, or insurance, including accident, burial, casualty, credit-life, contract-performance, dental, disability, fidelity, fire, health, hospitalization, illness, life, malpractice, marine, mortgage, surety, wage-protection, and worker-compensation insurance;
  14. “Loyalty card”:
    1. Means a record given without direct monetary consideration under an award, reward, benefit, loyalty, incentive, rebate, or promotional program, which may be used or redeemed only to obtain goods or services or a discount on goods or services; and
    2. Does not include a record that may be redeemed for money or otherwise monetized by the issuer;
  15. “Mineral” means gas, oil, coal, oil shale, other gaseous liquid or solid hydrocarbon, cement material, sand and gravel, road material, building stone, chemical raw material, gemstone, fissionable and nonfissionable ores, colloidal and other clay, steam and other geothermal resources, and any other substance defined as a mineral by law of this state other than this chapter;
  16. “Mineral proceeds”:
    1. Means an amount payable for extraction, production, or sale of minerals, or, on the abandonment of the amount, an amount that becomes payable after abandonment; and
    2. Includes an amount payable:
      1. For the acquisition and retention of a mineral lease, including a bonus, royalty, compensatory royalty, shut-in royalty, minimum royalty, and delay rental;
      2. For the extraction, production, or sale of minerals, including a net revenue interest, royalty, overriding royalty, extraction payment, and production payment; and
      3. Under an agreement or option, including a joint-operating agreement, unit agreement, pooling agreement, and farm-out agreement;
  17. “Money order”:
    1. Means a payment order for a specified amount of money; and
    2. Includes an express money order and a personal money order on which the remitter is the purchaser;
  18. “Municipal bond” means a bond or evidence of indebtedness issued by a municipality or other political subdivision of a state;
  19. “Net card value” means the original purchase price or original issued value of a stored-value card, plus amounts added to the original price or value, minus amounts used and any service charge, fee, or dormancy charge permitted by law;
  20. “Non-freely transferable security”:
    1. Means a security that cannot be delivered to the administrator by the Depository Trust Clearing Corporation or similar custodian of securities providing post-trade clearing and settlement services to financial markets or cannot be delivered because there is no agent to effect transfer; and
    2. Includes a worthless security;
  21. “Owner”:
    1. Means a person that has a legal, beneficial, or equitable interest in property subject to this chapter or the person’s legal representative when acting on behalf of the owner; and
    2. Includes:
      1. A depositor, for a deposit;
      2. A beneficiary, for a trust other than a deposit in trust;
      3. A creditor, claimant, or payee, for other property; and
      4. The lawful bearer of a record that may be used to obtain money, a reward, or a thing of value;
  22. “Payroll card” means a record that evidences a payroll card account as defined in 12 C.F.R. pt. 1005, as amended;
  23. “Person” means an individual, estate, business association, public corporation, government or governmental subdivision, agency, or instrumentality or other legal entity;
  24. “Property”:
    1. Means tangible property described in KRS 393A.080 or a fixed and certain interest in intangible property held, issued, or owed in the course of a holder’s business or by a government, governmental subdivision, agency, or instrumentality;
    2. Includes all income from or increments to the property;
    3. Includes property referred to as or evidenced by:
      1. Money, virtual currency, interest, or a dividend, check, draft, deposit, or payroll card;
      2. A credit balance, customer’s overpayment, stored-value card, security deposit, refund, credit memorandum, unpaid wage, unused ticket for which the issuer has an obligation to provide a refund, mineral proceeds, or unidentified remittance;
      3. A security, except for:
        1. A worthless security; or
        2. A security that is subject to a lien, legal hold, or restriction evidenced on the records of the holder or imposed by operation of law, if the lien, legal hold, or restriction restricts the holder’s or owner’s ability to receive, transfer, sell, or otherwise negotiate the security;
      4. A bond, debenture, note, or other evidence of indebtedness;
      5. Money deposited to redeem a security, make a distribution, or pay a dividend;
      6. An amount due and payable under an annuity contract or insurance policy; and
      7. An amount distributable from a trust or custodial fund established under a plan to provide health, welfare, pension, vacation, severance, retirement, death, stock purchase, profit-sharing, employee-savings, supplemental-unemployment insurance, or a similar benefit; and
    4. Does not include:
      1. Property held in a plan described in 26 U.S.C. sec. 529 A, as amended;
      2. Game-related digital content;
      3. A loyalty card;
      4. An in-store credit for returned merchandise; or
      5. A gift card;
  25. “Putative holder” means a person believed by the administrator to be a holder, until the person pays or delivers to the administrator property subject to this chapter or the administrator or a court makes a final determination that the person is or is not a holder;
  26. “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form;
  27. “Security” means:
    1. A security as defined in KRS 355.8-102 ;
    2. A security entitlement as defined in KRS 355.8-102 , including a customer security account held by a registered broker-dealer, to the extent the financial assets held in the security account are not:
      1. Registered on the books of the issuer in the name of the person for which the broker-dealer holds the assets;
      2. Payable to the order of the person; or
      3. Specifically indorsed to the person; and
    3. An equity interest in a business association not included in paragraph (a) or (b) of this subsection;
  28. “Sign” means, with present intent to authenticate or adopt a record:
    1. To execute or adopt a tangible symbol; or
    2. To attach to or logically associate with the record an electronic symbol, sound, or process;
  29. “State” means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States;
  30. “Stored-value card”:
    1. Means a record evidencing a promise made for consideration by the seller or issuer of the record that goods, services, or money will be provided to the owner of the record to the value or amount shown in the record;
    2. Includes a:
      1. Record that contains or consists of a microprocessor chip, magnetic strip, or other means for the storage of information, which is prefunded and whose value or amount is decreased on each use and increased by payment of additional consideration;
      2. Gift card; and
      3. Payroll card; and
    3. Does not include a loyalty card or game-related digital content;
  31. “Utility” means a person that owns or operates for public use a plant, equipment, real property, franchise, or license for the following public services:
    1. Transmission of communications or information;
    2. Production, storage, transmission, sale, delivery, or furnishing of electricity, water, steam, or gas; or
    3. Provision of sewage or septic services, or trash, garbage, or recycling disposal;
  32. “Virtual currency”:
    1. Means a digital representation of value used as a medium of exchange, unit of account, or store of value, which does not have legal tender status recognized by the United States; and
    2. Does not include:
      1. The software or protocols governing the transfer of the digital representation of value;
      2. Game-related digital content; or
      3. Loyalty card; and
  33. “Worthless security” means a security whose cost of liquidation and delivery to the administrator would exceed the value of the security on the date a report is due under this chapter.

HISTORY: 2018 ch. 163, § 1, effective July 14, 2018.

393A.020. Inapplicability to foreign transaction.

This chapter shall not apply to:

  1. Property held, due, and owing in a foreign country if the transaction out of which the property arose was a foreign transaction;
  2. Money, funds, or any other intangible property held by or owing:
    1. To a nonprofit exempt under Section 501(c)(3) of the Internal Revenue Code;
    2. For any minerals or other raw materials capable of being used for fuel in the course of manufacturing, processing, production, or mining; or
    3. For any mineral proceeds;
  3. Wages or salaries of fifty dollars ($50) or less that are not claimed by an employee within one (1) year of the date the wages or salaries are earned, unless the amounts are held on a payroll card;
  4. Moneys in inmate accounts and prisoner canteen accounts held by jailer under KRS 441.137 ; or
  5. Funds held in a lawyer IOLTA trust account under Supreme Court Rule 3.830.

HISTORY: 2018 ch. 163, § 2, effective July 14, 2018; 2019 ch. 125, § 3, effective June 27, 2019.

393A.030. Administrative regulations.

The administrator may promulgate administrative regulations under KRS Chapter 13A to implement and administer this chapter. In promulgating the administrative regulations, the administrator shall use the most cost-effective methods available for the submission of reports to the administrator and the notice and advertisement of property transferred to the administrator.

HISTORY: 2018 ch. 163, § 3, effective July 14, 2018.

393A.035. Unclaimed property trust fund.

  1. The unclaimed property trust fund is established in the Treasury of the Commonwealth.
  2. The trust fund shall be administered by the Finance and Administration Cabinet and all money in excess of the amount to be disbursed in a given fiscal year shall be invested to maximize returns.
  3. The trust fund shall consist of moneys received from appropriations, gifts, grants, federal funds, or moneys received on or after July 1, 2020.
  4. Interest earnings of the fund shall accrue to the trust fund, except to the extent that on July 1 of any fiscal year, if the trust fund has a balance which exceeds one hundred million dollars ($100,000,000), the interest earnings of the fund shall accrue to the general fund.
  5. Notwithstanding KRS 45.229 and except as provided by subsection (4) of this section, moneys deposited in the fund shall become a part of the fund and shall not lapse.
  6. Nothing in this section shall be interpreted to prohibit the General Assembly from appropriating funds to:
    1. The Department of the Treasury; or
    2. The unclaimed property trust fund.

HISTORY: 2019 ch. 63, § 1, effective June 27, 2019.

Presumption of Abandonment

393A.040. When property presumed abandoned.

Subject to KRS 393A.120 , the following property shall be presumed abandoned if it is unclaimed by the apparent owner during the period specified below:

  1. A traveler’s check, fifteen (15) years after issuance;
  2. A money order, seven (7) years after issuance;
  3. A state or municipal bond, bearer bond, or original-issue-discount bond, three (3) years after the earliest of the date the bond matures or is called or the obligation to pay the principal of the bond arises;
  4. A debt of a business association, three (3) years after the obligation to pay arises;
  5. A payroll card or demand, savings, or time deposit account, including a deposit that is automatically renewable, three (3) years after the maturity of the deposit, except a deposit that is automatically renewable is deemed matured on its initial date of maturity unless the apparent owner consented in a record on file with the holder to renewal at or about the time of the renewal, except:
    1. Property held in an interest-bearing, demand, savings, or time deposit account shall, from the time it is presumed abandoned under this chapter, be placed by the holder in an interest-bearing account made assignable to the administrator;
    2. The administrator may examine the records of the holder relevant to the establishment and maintenance of an interest-bearing account in accordance with this chapter;
    3. Upon demand and proper proof by a person appearing entitled to payment of property described in this subsection, the holder may withdraw the property and any accrued interest for payment to the entitled person;
    4. Property described in this subsection deposited and not claimed ten (10) years after it is presumed abandoned, or upon actual abandonment, shall be paid to the administrator upon whichever abandonment occurs first; and
    5. The administrator shall not be required to credit interest on any property described in this subsection after the property is received under paragraph (d) of this subsection;
  6. Money or a credit owed to a customer as a result of a retail business transaction, other than in-store credit for returned merchandise, three (3) years after the obligation arose;
  7. An amount owed by an insurance company on a life or endowment insurance policy or an annuity contract that has matured or terminated, three (3) years after the obligation to pay arose under the terms of the policy or contract or, if a policy or contract for which an amount is owed on proof of death has not matured by proof of the death of the insured or annuitant, as follows:
    1. With respect to an amount owed on a life or endowment insurance policy, three (3) years after the earlier of the date:
      1. The insurance company has knowledge of the death of the insured; or
      2. The insured has attained, or would have attained if living, the limiting age under the mortality table on which the reserve for the policy is based; and
    2. With respect to an amount owed on an annuity contract, three (3) years after the date the insurance company has knowledge of the death of the annuitant;
  8. Property distributable by a business association in the course of dissolution, one (1) year after the property becomes distributable;
  9. Property held by a court, including property received as proceeds of a class action, may be paid to the administrator one (1) year after the property becomes distributable, but shall be paid to the administrator no later than five (5) years after the property becomes distributable;
  10. Property held by a government or governmental subdivision, agency, or instrumentality, including municipal bond interest and unredeemed principal under the administration of a paying agent or indenture trustee, one (1) year after the property becomes distributable;
  11. Property payable or distributable in the course of a demutualization of an insurance company, three (3) years after the earlier of the last contact with the policyholder, or the date the property became payable or distributable;
  12. Wages, commissions, bonuses, or reimbursements to which an employee is entitled, or other compensation for personal services, other than amounts held in a payroll card, one (1) year after the amount becomes payable;
  13. A deposit or refund owed to a subscriber by a utility, one (1) year after the deposit or refund becomes payable;
  14. All funds represented by unclaimed pari-mutual winning tickets held in this state by any person, association, or corporation operating a pari-mutual or similar system of betting at quarter horse or Appaloosa racetracks, two (2) years from the time the ticket became payable; and
  15. Property not specified in KRS 393A.050 , 393A.060 , 393A.070 , 393A.080 , 393A.090 , or 393A.100 , the earlier of three (3) years after the owner first has a right to demand the property or the obligation to pay or distribute the property arises.

HISTORY: 2018 ch. 163, § 4, effective July 14, 2018.

393A.050. When tax-deferred retirement account presumed abandoned.

  1. Subject to KRS 393A.120 , property held in a pension account or retirement account that qualifies for tax deferral under the income-tax laws of the United States shall be presumed abandoned if it is unclaimed by the apparent owner three (3) years after the later of:
    1. The following dates:
      1. Except as provided in subparagraph 2. of this paragraph, the date a second consecutive communication sent by the holder by first-class United States mail to the apparent owner is returned to the holder undelivered by the United States Postal Service; or
      2. If the second communication is sent later than thirty (30) days after the date the first communication is returned undelivered, the date the first communication was returned undelivered by the United States Postal Service; or
    2. The earlier of the following dates:
      1. The date the apparent owner becomes seventy and one-half (70 1/2) years of age, if determinable by the holder; or
      2. If 26 U.S.C. secs. 1 et seq., as amended, requires distribution to avoid a tax penalty, two (2) years after the date the holder:
        1. Receives confirmation of the death of the apparent owner in the ordinary course of its business; or
        2. Confirms the death of the apparent owner under subsection (2) of this section.
  2. If a holder in the ordinary course of its business receives notice or an indication of the death of an apparent owner and subsection (1)(b) of this section applies, the holder shall attempt not later than ninety (90) days after receipt of the notice or indication to confirm whether the apparent owner is deceased.
  3. If the holder does not send communications to the apparent owner of an account described in subsection (1) of this section by first-class United States mail, the holder shall attempt to confirm the apparent owner’s interest in the property by sending the apparent owner an electronic-mail communication not later than two (2) years after the apparent owner’s last indication of interest in the property. However, the holder promptly shall attempt to contact the apparent owner by first-class United States mail if:
    1. The holder does not have information needed to send the apparent owner an electronic-mail communication or the holder believes that the apparent owner’s electronic-mail address in the holder’s records is not valid;
    2. The holder receives notification that the electronic-mail communication was not received; or
    3. The apparent owner does not respond to the electronic-mail communication within thirty (30) days after the communication was sent.
  4. If first-class United States mail sent under subsection (3) of this section is returned to the holder undelivered by the United States Postal Service, the property shall be presumed abandoned three (3) years after the later of:
    1. Except as provided in paragraph (b) of this subsection, the date a second consecutive communication to contact the apparent owner sent by first-class United States mail is returned to the holder undelivered;
    2. If the second communication is sent later than thirty (30) days after the date the first communication is returned undelivered, the date the first communication was returned undelivered; or
    3. The date established by subsection (1)(b) of this section.

HISTORY: 2018 ch. 163, § 5, effective July 14, 2018.

393A.060. When other tax-deferred account presumed abandoned.

Subject to KRS 393A.120 and except for property described in KRS 393A.050 and property held in a plan described in 26 U.S.C. sec. 529 A, property held in an account or plan, including a health savings account, that qualifies for tax deferral under the income-tax laws of the United States shall be presumed abandoned if it is unclaimed by the apparent owner three (3) years after the earlier of:

  1. The date, if determinable by the holder, specified in the income-tax laws and regulations of the United States by which distribution of the property shall begin to avoid a tax penalty, with no distribution having been made; or
  2. Thirty (30) years after the date the account was opened.

HISTORY: 2018 ch. 163, § 6, effective July 14, 2018.

393A.070. When custodial account for minor presumed abandoned.

  1. Subject to KRS 393A.120 , property held in an account established under the Uniform Transfers to Minors Act, KRS 385.012 to 385.242 , shall be presumed abandoned if it is unclaimed by or on behalf of the minor on whose behalf the account was opened three (3) years after the later of:
    1. Except as provided in paragraph (b) of this subsection, the date a second consecutive communication sent by the holder by first-class United States mail to the custodian of the minor on whose behalf the account was opened is returned undelivered to the holder by the United States Postal Service;
    2. If the second communication is sent later than thirty (30) days after the date the first communication is returned undelivered, the date the first communication was returned undelivered; or
    3. The date on which the custodian is required to transfer the property to the minor or the minor’s estate in accordance with the Uniform Gifts to Minors Act or Uniform Transfers to Minors Act of the state in which the account was opened.
  2. If the holder does not send communications to the custodian of the minor on whose behalf an account described in subsection (1) of this section was opened by first-class United States mail, the holder shall attempt to confirm the custodian’s interest in the property by sending the custodian an electronic-mail communication not later than two (2) years after the custodian’s last indication of interest in the property. However, the holder promptly shall attempt to contact the custodian by first-class United States mail if:
    1. The holder does not have information needed to send the custodian an electronic-mail communication or the holder believes that the custodian’s electronic-mail address in the holder’s records is not valid;
    2. The holder receives notification that the electronic-mail communication was not received; or
    3. The custodian does not respond to the electronic-mail communication within thirty (30) days after the communication was sent.
  3. If first-class United States mail sent under subsection (2) of this section is returned undelivered to the holder by the United States Postal Service, the property shall be presumed abandoned three (3) years after the later of:
    1. The date a second consecutive communication to contact the custodian by first-class United States mail is returned to the holder undelivered by the United States Postal Service; or
    2. The date established by subsection (1)(c) of this section.
  4. When the property in the account described in subsection (1)(c) of this section is transferred to the minor on whose behalf an account was opened or to the minor’s estate, the property in the account shall no longer be subject to this section.

HISTORY: 2018 ch. 163, § 7, effective July 14, 2018.

393A.080. When contents of safe-deposit box presumed abandoned.

Tangible property held in a safe-deposit box and proceeds from a sale of the property by the holder permitted by law of this state other than this chapter are presumed abandoned if the property remains unclaimed by the apparent owner five (5) years after the earlier of the:

  1. Expiration of the lease or rental period for the box; or
  2. Earliest date when the lessor of the box is authorized by law of this state other than this chapter to enter the box and remove or dispose of the contents without consent or authorization of the lessee.

HISTORY: 2018 ch. 163, § 8, effective July 14, 2018.

393A.090. When stored-value card presumed abandoned.

  1. Subject to KRS 393A.120 , the net card value of a stored-value card, other than a payroll card or a gift card, shall be presumed abandoned on the latest of three (3) years after:
    1. December 31 of the year in which the card is issued or additional funds are deposited into it;
    2. The most recent indication of interest in the card by the apparent owner; or
    3. A verification or review of the balance by or on behalf of the apparent owner.
  2. The amount presumed abandoned in a stored-value card shall be the net card value at the time it is presumed abandoned.

HISTORY: 2018 ch. 163, § 9, effective July 14, 2018.

393A.100. When security presumed abandoned.

  1. Subject to KRS 393A.120 , a security shall be presumed abandoned three (3) years after:
    1. The date a second consecutive communication sent by the holder by first-class United States mail to the apparent owner is returned to the holder undelivered by the United States Postal Service; or
    2. If the second communication is made later than thirty (30) days after the first communication is returned, the date the first communication is returned undelivered to the holder by the United States Postal Service.
  2. If the holder does not send communications to the apparent owner of a security by first-class United States mail, the holder shall attempt to confirm the apparent owner’s interest in the security by sending the apparent owner an electronic-mail communication not later than two (2) years after the apparent owner’s last indication of interest in the security. However, the holder promptly shall attempt to contact the apparent owner by first-class United States mail if:
    1. The holder does not have information needed to send the apparent owner an electronic-mail communication or the holder believes that the apparent owner’s electronic-mail address in the holder’s records is not valid;
    2. The holder receives notification that the electronic-mail communication was not received; or
    3. The apparent owner does not respond to the electronic-mail communication within thirty (30) days after the communication was sent.
  3. If first-class United States mail sent under subsection (2) of this section is returned to the holder undelivered by the United States Postal Service, the security shall be presumed abandoned three (3) years after the date the mail is returned.

HISTORY: 2018 ch. 163, § 10, effective July 14, 2018.

393A.110. When related property presumed abandoned.

At and after the time property is presumed abandoned under this chapter, any other property right or interest accrued or accruing from the property and not previously presumed abandoned shall also be presumed abandoned.

HISTORY: 2018 ch. 163, § 11, effective July 14, 2018.

393A.120. Indication of apparent owner interest in property.

  1. The period after which property shall be presumed abandoned shall be measured from the later of:
    1. The date the property is presumed abandoned under this chapter; or
    2. The latest indication of interest by the apparent owner in the property.
  2. Under this chapter, an indication of an apparent owner’s interest in property includes:
    1. A record communicated by the apparent owner to the holder or agent of the holder concerning the property or the account in which the property is held;
    2. An oral communication by the apparent owner to the holder or agent of the holder concerning the property or the account in which the property is held, if the holder or its agent contemporaneously makes and preserves a record of the fact of the apparent owner’s communication;
    3. Presentment of a check or other instrument of payment of a dividend, interest payment, or other distribution, or evidence of receipt of a distribution made by electronic or similar means, with respect to an account, underlying security, or interest in a business association;
    4. Activity directed by an apparent owner in the account in which the property is held, including accessing the account or information concerning the account, or a direction by the apparent owner to increase, decrease, or otherwise change the amount or type of property held in the account;
    5. A deposit into or withdrawal from an account at a financial organization, including an automatic deposit or withdrawal previously authorized by the apparent owner other than an automatic reinvestment of dividends or interest;
    6. Subject to subsection (5) of this section, payment of a premium on an insurance policy; and
    7. Any other action by the apparent owner which reasonably demonstrates to the holder that the apparent owner knows that the property exists.
  3. An action by an agent or other representative of an apparent owner, other than the holder acting as the apparent owner’s agent, shall be presumed to be an action on behalf of the apparent owner.
  4. A communication with an apparent owner by a person other than the holder or the holder’s representative shall not be an indication of interest in the property by the apparent owner unless a record of the communication evidences the apparent owner’s knowledge of a right to the property.
  5. If the insured dies or the insured or beneficiary of an insurance policy otherwise becomes entitled to the proceeds before depletion of the cash surrender value of the policy by operation of an automatic-premium-loan provision or other nonforfeiture provision contained in the policy, the operation shall not prevent the policy from maturing or terminating.

HISTORY: 2018 ch. 163, § 12, effective July 14, 2018.

393A.130. Knowledge of death of insured or annuitant.

  1. As used in this section, “death master file” means the United States Social Security Administration Death Master File or other database or service that is at least as comprehensive as the United States Social Security Administration Death Master File for determining that an individual reportedly has died.
  2. With respect to a life or endowment insurance policy or annuity contract for which an amount is owed on proof of death, but which has not matured by proof of death of the insured or annuitant, the company has knowledge of the death of an insured or annuitant when:
    1. The company receives a death certificate or court order determining that the insured or annuitant has died;
    2. The company conducts a comparison for any purpose between a death master file and the names of some or all of the company’s insureds or annuitants, finds a match that provides notice that the insured or annuitant has died, and validates the death;
    3. The administrator or the administrator’s agent conducts a comparison for the purpose of finding matches during an examination conducted under KRS 393A.550 to 393A.650 between a death master file and the names of some or all of the company’s insureds or annuitants, finds a match that provides notice that the insured or annuitant has died, and the company validates the death; or
    4. The company:
      1. Receives notice of the death of the insured or annuitant from an administrator, beneficiary, policy owner, relative of the insured, or trustee or from a personal representative, executor, or other legal representative of the insured’s or annuitant’s estate; and
      2. Validates the death of the insured or annuitant.
  3. The following rules apply under this section:
    1. A death-master-file match under subsection (2)(b) or (c) of this section occurs if the criteria for an exact or partial match are satisfied as provided by KRS 304.15-420 ;
    2. The death-master-file match shall not constitute proof of death for the purpose of submission to an insurance company of a claim by a beneficiary, annuitant, or owner of the policy or contract for an amount due under an insurance policy or annuity contract; and
    3. The death-master-file match or validation of the insured’s or annuitant’s death shall not alter the requirements for a beneficiary, annuitant, or owner of the policy or contract to make a claim to receive proceeds under the terms of the policy or contract.

HISTORY: 2018 ch. 163, § 13, effective July 14, 2018.

393A.140. Deposit account for proceeds of life insurance policy or annuity contract.

If proceeds payable under a life or endowment insurance policy or annuity contract are deposited into an account with check or draft-writing privileges for the beneficiary of the policy or contract and, under a supplementary contract not involving annuity benefits other than death benefits, the proceeds are retained by the insurance company or the financial organization where the account is held, the policy or contract includes the assets in the account.

HISTORY: 2018 ch. 163, § 14, effective July 14, 2018.

Rules for Taking Custody of Property Presumed Abandoned

393A.150. Address of apparent owner to establish priority.

In KRS 393A.150 to 393A.210 :

  1. The last-known address of an apparent owner shall be any description, code, or other indication of the location of the apparent owner which identifies the state, even if the description, code, or indication of location shall not be sufficient to direct the delivery of first-class United States mail to the apparent owner;
  2. If the United States postal zip code associated with the apparent owner is for a post office located in this state, this state shall be deemed to be the state of the last-known address of the apparent owner unless other records associated with the apparent owner specifically identify the physical address of the apparent owner to be in another state;
  3. If the address under subsection (2) of this section is in another state, the other state shall be deemed to be the state of the last-known address of the apparent owner; and
  4. The address of the apparent owner of a life or endowment insurance policy or annuity contract or its proceeds shall be presumed to be the address of the insured or annuitant if a person other than the insured or annuitant is entitled to the amount owed under the policy or contract and the address of the other person is not known by the insurance company and cannot be determined under KRS 393A.160 .

HISTORY: 2018 ch. 163, § 15, effective July 14, 2018.

393A.160. Address of apparent owner in this state.

The administrator may take custody of property that is presumed abandoned, whether located in this state, another state, or a foreign country if:

  1. The last-known address of the apparent owner in the records of the holder is in this state; or
  2. The records of the holder do not reflect the identity or last-known address of the apparent owner, but the administrator has determined that the last-known address of the apparent owner is in this state.

HISTORY: 2018 ch. 163, § 16, effective July 14, 2018.

393A.170. If records show multiple addresses of apparent owner.

  1. Except as provided in subsection (2) of this section, if records of a holder reflect multiple addresses for an apparent owner and this state is the state of the most recently recorded address, this state may take custody of property presumed abandoned, whether located in this state or another state.
  2. If it appears from records of the holder that the most recently recorded address of the apparent owner under subsection (1) of this section is a temporary address and this state is the state of the next most recently recorded address that is not a temporary address, this state may take custody of the property presumed abandoned.

HISTORY: 2018 ch. 163, § 17, effective July 14, 2018.

393A.180. Holder domiciled in this state.

  1. Except as provided in subsection (2) of this section or KRS 393A.160 or 393A.170 , the administrator may take custody of property presumed abandoned, whether located in this state, another state, or a foreign country, if the holder is domiciled in this state or is this state or a governmental subdivision, agency, or instrumentality of this state, and:
    1. Another state or foreign country shall not be entitled to the property because there is no last-known address of the apparent owner or other person entitled to the property in the records of the holder; or
    2. The state or foreign country of the last-known address of the apparent owner or other person entitled to the property does not provide for custodial taking of the property.
  2. Property shall not be subject to the custody of the administrator under subsection (1) of this section if the property is specifically exempt from custodial taking under the law of this state or the state or foreign country of the last-known address of the apparent owner.
  3. If a holder’s state of domicile has changed since the time property was presumed abandoned, the holder’s state of domicile in this section shall be deemed to be the state where the holder was domiciled at the time the property was presumed abandoned.

HISTORY: 2018 ch. 163, § 18, effective July 14, 2018.

393A.190. Custody if transaction took place in this state.

Except as in KRS 393A.160 , 393A.170 , or 393A.180 , the administrator may take custody of property presumed abandoned whether located in this state or another state if:

  1. The transaction out of which the property arose took place in this state;
  2. The holder is domiciled in a state that does not provide for the custodial taking of the property, except that if the property is specifically exempt from custodial taking under the law of the state of the holder’s domicile, the property shall not be subject to the custody of the administrator; and
  3. The last-known address of the apparent owner or other person entitled to the property is unknown or in a state that does not provide for the custodial taking of the property, except that if the property is specifically exempt from custodial taking under the law of the state of the last-known address, the property shall not be subject to the custody of the administrator.

HISTORY: 2018 ch. 163, § 19, effective July 14, 2018.

393A.200. Traveler’s check, money order, or similar instrument.

The administrator may take custody of sums payable on a traveler’s check, money order, or similar instrument presumed abandoned to the extent permissible under 12 U.S.C. secs. 2501 to 2503, as amended.

HISTORY: 2018 ch. 163, § 20, effective July 14, 2018.

393A.210. Burden of proof to establish administrator’s right to custody.

If the administrator asserts a right to custody of unclaimed property, the administrator has the burden to prove:

  1. The existence and amount of the property;
  2. The property shall be presumed abandoned; and
  3. The property shall be subject to the custody of the administrator.

HISTORY: 2018 ch. 163, § 21, effective July 14, 2018.

Report by Holder

393A.220. Report required by holder.

  1. A holder of property presumed abandoned and subject to the custody of the administrator shall report in a record to the administrator concerning the property. A holder shall not be required to file a report if the holder has no property that is presumed abandoned. The administrator shall not require a holder to file a paper report.
  2. A holder may contract with a third party to make the report required under subsection (1) of this section.
  3. Whether or not a holder contracts with a third party under subsection (2) of this section, the holder shall be responsible:
    1. To the administrator for the complete, accurate, and timely reporting of property presumed abandoned; and
    2. For paying or delivering to the administrator property described in the report.

HISTORY: 2018 ch. 163, § 22, effective July 14, 2018.

393A.230. Content of report.

  1. The report required under KRS 393A.220 shall:
    1. Be signed by or on behalf of the holder and verified as to its completeness and accuracy;
    2. If filed electronically, be in a secure format approved by the administrator which protects confidential information of the apparent owner in the same manner as required of the administrator and the administrator’s agent under KRS 393A.770 to 393A.830 ;
    3. Describe the property;
    4. Except for a traveler’s check, money order, or similar instrument, contain the name, if known, last-known address, if known, and Social Security number or taxpayer identification number, if known or readily ascertainable, of the apparent owner of property with a value of fifty dollars ($50) or more;
    5. For an amount held or owing under a life or endowment insurance policy or annuity contract, contain the name and last-known address of the insured, annuitant, or other apparent owner of the policy or contract and of the beneficiary;
    6. For property held in or removed from a safe-deposit box, indicate the location of the property, where it may be inspected by the administrator, and any amounts owed to the holder under KRS 393A.360 ;
    7. Contain the commencement date for determining abandonment under KRS 393A.040 to 393A.140 ;
    8. State that the holder has complied with the notice requirements of KRS 393A.270 ;
    9. Identify property that is a non-freely transferable security and explain why it is a non-freely transferable security; and
    10. Contain other information the administrator prescribes.
  2. A report under KRS 393A.220 may include in the aggregate items valued under fifty dollars ($50) each. If the report includes items in the aggregate valued under fifty dollars ($50) each, the administrator shall not require the holder to provide the name and address of an apparent owner of an item unless the information is necessary to verify or process a claim in progress by the apparent owner.
  3. A report under KRS 393A.220 may include personal information as described in KRS 393A.780(1) about the apparent owner or the apparent owner’s property to the extent not otherwise prohibited by federal law.
  4. If a holder has changed its name while holding property presumed abandoned or is a successor to another person that previously held the property for the apparent owner, the holder shall include in the report under KRS 393A.220 its former name or the name of the previous holder, if any, and the known name and address of each previous holder of the property.

HISTORY: 2018 ch. 163, § 23, effective July 14, 2018.

393A.240. When report to be filed.

  1. Except as otherwise provided in subsection (2) of this section, and subject to subsection (3) of this section, the report under KRS 393A.220 shall be filed before November 1 of each year and cover the twelve (12) months preceding July 1 of that year.
  2. Subject to subsection (3) of this section, the report under KRS 393A.220 to be filed by an insurance company shall be filed before May 1 of each year for the immediately preceding calendar year.
  3. Before the date for filing the report under KRS 393A.220 , the holder of property presumed abandoned may request the administrator extend the time for filing. The administrator may grant an extension. If the extension is granted, the holder may pay or make a partial payment of the amount the holder estimates ultimately will be due. The payment or partial payment terminates accrual of interest on the amount paid.

HISTORY: 2018 ch. 163, § 24, effective July 14, 2018.

393A.250. Retention of records by holder.

A holder required to file a report KRS 393A.220 shall retain records for ten (10) years after the later of the date the report was filed or the last date a timely report was due to be filed, unless a shorter period shall be provided by rule of the administrator. The holder may satisfy the requirement to retain records under this section through an agent. The records shall contain:

  1. The information required to be included in the report;
  2. The date, place, and nature of the circumstances that gave rise to the property right;
  3. The amount or value of the property;
  4. The last address of the apparent owner, if known to the holder; and
  5. If the holder sells, issues, or provides to others for sale or issue in this state traveler’s checks, money orders, or similar instruments, other than third-party bank checks, on which the holder is directly liable, a record of the instruments while they remain outstanding indicating the state and date of issue.

HISTORY: 2018 ch. 163, § 25, effective July 14, 2018.

393A.260. Property reportable and payable or deliverable absent owner demand.

Property shall be reportable and payable or deliverable under this chapter even if the owner fails to make demand or present an instrument or document otherwise required to obtain payment.

HISTORY: 2018 ch. 163, § 26, effective July 14, 2018.

Notice to Apparent Owner of Property Presumed Abandoned

393A.270. Notice to apparent owner by holder.

  1. Subject to subsection (2) of this section, the holder of property presumed abandoned shall send to the apparent owner notice by first-class United States mail that complies with KRS 393A.280 in a format acceptable to the administrator not more than one hundred eighty (180) days nor less than sixty (60) days before filing the report under KRS 393A.220 if:
    1. The holder has in its records an address for the apparent owner which the holder’s records do not disclose to be invalid and is sufficient to direct the delivery of first-class United States mail to the apparent owner; and
    2. The value of the property is fifty dollars ($50) or more.
  2. If an apparent owner has consented to receive electronic-mail delivery from the holder, the holder shall send the notice described in subsection (1) of this section both by first-class United States mail to the apparent owner’s last-known mailing address and by electronic mail, unless the holder believes that the apparent owner’s electronic-mail address is invalid.

HISTORY: 2018 ch. 163, § 27, effective July 14, 2018.

393A.280. Contents of notice by holder.

  1. Notice under KRS 393A.270 shall contain a heading that reads substantially as follows: “Notice. The Commonwealth of Kentucky requires us to notify you that your property may be transferred to the custody of the Kentucky State Treasurer if you do not contact us before (insert date that is thirty (30) days after the date of this notice).”
  2. The notice under KRS 393A.270 shall:
    1. Identify the nature and, except for property that does not have a fixed value, the value of the property that is the subject of the notice;
    2. State that the property shall be turned over to the administrator;
    3. State that after the property is turned over to the administrator, an apparent owner that seeks return of the property shall file a claim with the administrator;
    4. State that property that is not legal tender of the United States may be sold by the administrator; and
    5. Provide instructions that the apparent owner shall follow to prevent the holder from reporting and paying or delivering the property to the administrator.

HISTORY: 2018 ch. 163, § 28, effective July 14, 2018.

393A.290. Notice by administrator.

  1. The administrator shall give notice to an apparent owner that property presumed abandoned and appears to be owned by the apparent owner shall be held by the administrator under this chapter.
  2. In providing notice under subsection (1) of this section, the administrator shall:
    1. Not be required to use newspaper publication to provide notice; and
    2. Maintain a Web site or database accessible by the public and electronically searchable that contains the names reported to the administrator of all apparent owners for whom property is being held by the administrator.
  3. The Web site or database maintained under subsection (2)(b) of this section shall include instructions for filing with the administrator a claim to property and a printable claim form with instructions for its use.
  4. In addition to giving notice under subsection (2) of this section, the administrator may use printed publication, telecommunication, the Internet, or other media to inform the public of the existence of unclaimed property held by the administrator.

HISTORY: 2018 ch. 163, § 29, effective July 14, 2018.

393A.300. Cooperation among state officers and agencies to locate apparent owner.

Unless prohibited by law other than this chapter, on request of the administrator, each officer, agency, board, commission, division, and department of this state, any body politic and corporate created by this state for a public purpose, and each political subdivision of this state shall make its books and records available to the administrator and cooperate with the administrator to determine the current address of an apparent owner of property held by the administrator under this chapter.

HISTORY: 2018 ch. 163, § 30, effective July 14, 2018.

Taking Custody of Property by Administrator

393A.310. Definition of good faith.

In KRS 393A.310 to 393A.390 , payment or delivery of property shall be made in good faith if a holder:

  1. Had a reasonable basis for believing, based on the facts then known, that the property was required or permitted to be paid or delivered to the administrator under this chapter; or
  2. Made payment or delivery:
    1. In response to a demand by the administrator or administrator’s agent; or
    2. Under a guidance or ruling issued by the administrator which the holder reasonably believed required or permitted the property to be paid or delivered.

HISTORY: 2018 ch. 163, § 31, effective July 14, 2018.

393A.320. Dormancy charge.

  1. A holder may deduct a dormancy charge from property required to be paid or delivered to the administrator if:
    1. A valid contract between the holder and the apparent owner authorizes imposition of the charge for the apparent owner’s failure to claim the property within a specified time; and
    2. The holder regularly imposes the charge and regularly does not reverse or otherwise cancel the charge.
  2. The amount of the deduction under subsection (1) of this section shall be limited to an amount that shall not be unconscionable considering all relevant factors, including the marginal transactional costs incurred by the holder in maintaining the apparent owner’s property and any services received by the apparent owner.

HISTORY: 2018 ch. 163, § 32, effective July 14, 2018.

393A.330. Payment or delivery of property to administrator.

  1. Except as otherwise provided in this section, on filing a report under KRS 393A.220 , the holder shall pay or deliver to the administrator the property described in the report.
  2. If property in a report under KRS 393A.220 is an automatically renewable deposit and a penalty or forfeiture in the payment of interest would result from paying the deposit to the administrator at the time of the report, the date for payment of the property to the administrator is extended until a penalty or forfeiture no longer would result from payment, if the holder informs the administrator of the extended date.
  3. Tangible property in a safe-deposit box shall not be delivered to the administrator until one hundred twenty (120) days after filing the report under KRS 393A.220 .
  4. If property reported to the administrator under KRS 393A.220 is a security, the administrator may:
    1. Make an endorsement, instruction, or entitlement order on behalf of the apparent owner to invoke the duty of the issuer, its transfer agent, or the securities intermediary to transfer the security; or
    2. Dispose of the security under KRS 393A.410 .
  5. If the holder of property reported to the administrator under KRS 393A.220 is the issuer of a certificated security, the administrator may obtain a replacement certificate in physical or book-entry form under KRS 355.8-405 . An indemnity bond shall not be required.
  6. The administrator shall establish procedures for the registration, issuance, method of delivery, transfer, and maintenance of securities delivered to the administrator by a holder.
  7. An issuer, holder, and transfer agent or other person acting under this section under instructions of and on behalf of the issuer or holder shall not be liable to the apparent owner for, and shall be indemnified by the state against, a claim arising with respect to property after the property has been delivered to the administrator.
  8. A holder shall not be required to deliver to the administrator a security identified by the holder as a non-freely transferable security. If the administrator or holder determines that a security is no longer a non-freely transferable security, the holder shall deliver the security on the next regular date prescribed for delivery of securities under this chapter. The holder shall make a determination annually whether a security identified in a report filed under KRS 393A.220 as a non-freely transferable security is no longer a non-freely transferable security.
    1. If property reported to the administrator is virtual currency, the holder shall liquidate the virtual currency and remit the proceeds to the administrator.
    2. The liquidation shall occur anytime within ninety (90) days prior to the filing of the report under KRS 393A.220 .
    3. The owner shall not have recourse against the holder or the administrator to recover any gain in value that occurs after the liquidation of the virtual currency under this subsection.

HISTORY: 2018 ch. 163, § 33, effective July 14, 2018; 2019 ch. 125, § 4, effective June 27, 2019.

393A.340. Effect of payment or delivery of property to administrator.

  1. On payment or delivery of property to the administrator under this chapter, the administrator as agent for the state assumes custody and responsibility for safekeeping the property. A holder that pays or delivers property to the administrator in good faith and substantially complies with KRS 393A.270 and 393A.280 shall be relieved of liability arising thereafter with respect to payment or delivery of the property to the administrator.
  2. This state shall defend and indemnify a holder against liability on a claim against the holder resulting from the payment or delivery of property to the administrator made in good faith and after the holder substantially complied with KRS 393A.270 and 393A.280 .

HISTORY: 2018 ch. 163, § 34, effective July 14, 2018.

393A.350. Recovery of property by holder from administrator.

  1. A holder that pays money to the administrator under this chapter may file a claim for reimbursement from the administrator of the amount paid if the holder:
    1. Paid the money in error; or
    2. After paying the money to the administrator, paid money to a person the holder reasonably believed to be entitled to the money.
  2. If a claim for reimbursement under subsection (1) of this section is made for a payment made on a negotiable instrument, including a traveler’s check, money order, or similar instrument, the holder shall submit proof that the instrument was presented and payment was made to a person the holder reasonably believed entitled to payment. The holder may claim reimbursement even if the payment was made to a person whose claim was made after expiration of a period of limitation on the owner’s right to receive or recover property, whether specified by contract, statute, or court order.
  3. A holder that delivers property other than money to the administrator under this chapter may file a claim under KRS 393A.510 for return of the property from the administrator if:
    1. The holder delivered the property in error; or
    2. The apparent owner has claimed the property from the holder.
  4. If a claim for return of property under subsection (3) of this section is made, the holder shall include with the claim evidence sufficient to establish that the apparent owner has claimed the property from the holder or that the property was delivered by the holder to the administrator in error.
  5. The administrator may determine that an affidavit submitted by a holder is evidence sufficient to establish that the holder shall be entitled to reimbursement or to recover property under this section.
  6. A holder shall not be required to pay a fee or other charge for reimbursement or return of property under this section.
  7. Not later than ninety (90) days after a claim is filed under subsection (1) or (3) of this section, the administrator shall allow or deny the claim and give the claimant notice of the decision in a record. If the administrator does not take action on a claim during the ninety (90) day period, the claim shall be deemed denied.
  8. The claimant may initiate a proceeding under KRS Chapter 13B for review of the administrator’s decision or the deemed denial under subsection (7) of this section not later than:
    1. Thirty (30) days following receipt of the notice of the administrator’s decision; or
    2. One hundred twenty (120) days following the filing of a claim under subsection (1) or (3) of this section in the case of a deemed denial under subsection (7) of this section.
  9. A final decision in an administrative proceeding initiated under subsection (8) of this section shall be subject to judicial review under KRS Chapter 13B.

HISTORY: 2018 ch. 163, § 35, effective July 14, 2018.

393A.360. Property removed from safe-deposit box.

Property removed from a safe-deposit box and delivered under this chapter to the administrator shall be subject to the holder’s right to reimbursement for the cost of opening the box and a lien or contract providing reimbursement to the holder for unpaid rent charges for the box. The administrator shall reimburse the holder from the proceeds remaining after deducting the expense incurred by the administrator in selling the property.

HISTORY: 2018 ch. 163, § 36, effective July 14, 2018.

393A.370. Administrator’s options as to custody.

  1. The administrator may decline to take custody of property reported under KRS 393A.220 if the administrator determines that:
    1. The property has a value less than the estimated expenses of notice and sale of the property; or
    2. Taking custody of the property would be unlawful.
  2. A holder may pay or deliver property to the administrator before the property shall be presumed abandoned under this chapter if the holder:
    1. Sends the apparent owner of the property notice required by KRS 393A.270 and provides the administrator evidence of the holder’s compliance with this paragraph;
    2. Includes with the payment or delivery a report regarding the property conforming to KRS 393A.230 ; and
    3. First obtains the administrator’s consent in a record to accept payment or delivery.
  3. A holder’s request for the administrator’s consent under subsection (2)(c) of this section shall be in a record. If the administrator fails to respond to the request not later than thirty (30) days after receipt of the request, the administrator shall be deemed to consent to the payment or delivery of the property and the payment or delivery shall be considered to have been made in good faith.
  4. On payment or delivery of property under subsection (2) of this section, the property shall be presumed abandoned.

HISTORY: 2018 ch. 163, § 37, effective July 14, 2018.

393A.380. Disposition of property having no substantial value — Immunity from liability.

  1. If the administrator takes custody of property delivered under this chapter and later determines that the property has no substantial commercial value or that the cost of disposing of the property will exceed the value of the property, the administrator may return the property to the holder or destroy or otherwise dispose of the property.
  2. In disposing of property under subsection (1) of this section, the administrator may deliver the property to the Kentucky Historical Society, or any other museum, historical society, or organization approved by the administrator, and on such terms as the administrator deems appropriate. Upon delivery of the property to a third party described in this subsection, the administrator shall no longer be responsible for the safekeeping of the property.
  3. An action or proceeding shall not be commenced against the state, an agency of the state, the administrator, another officer, employee, or agent of the state, or a holder for or because of an act of the administrator under this section, except for intentional misconduct or malfeasance.

HISTORY: 2018 ch. 163, § 38, effective July 14, 2018.

393A.390. Periods of limitation and repose.

  1. Expiration, before, on, or after July 14, 2018, of a period of limitation on an owner’s right to receive or recover property, whether specified by contract, statute, or court order, shall not prevent the property from being presumed abandoned or affect the duty of a holder under this chapter to file a report or pay or deliver property to the administrator.
  2. The administrator shall not commence an action or proceeding to enforce this chapter with respect to the reporting, payment, or delivery of property more than five (5) years after the holder filed a non-fraudulent report under KRS 393A.220 with the administrator. The parties may agree in a record to extend the limitation in this subsection.
  3. The administrator shall not commence an action, proceeding, or examination with respect to a duty of a holder under this chapter more than ten (10) years after the duty arose.

HISTORY: 2018 ch. 163, § 39, effective July 14, 2018.

Sale of Property by Administrator

393A.400. Public sale of property.

  1. Subject to KRS 393A.410 , the administrator may sell the property no earlier than three (3) years after receipt of property presumed abandoned.
  2. Before selling property under subsection (1) of this section, the administrator shall give notice to the public of:
    1. The date of the sale; and
    2. A reasonable description of the property.
  3. A sale under subsection (1) of this section shall be to the highest bidder:
    1. At public sale at a location in this state which the administrator determines to be the most favorable market for the property;
    2. On the Internet; or
    3. On another forum the administrator determines is likely to yield the highest net proceeds of sale.
  4. The administrator may decline the highest bid at a sale under this section and reoffer the property for sale if the administrator determines the highest bid is insufficient.
  5. If a sale held under this section is to be conducted other than on the Internet, the administrator shall publish at least one (1) notice of the sale, at least three (3) weeks but not more than five (5) weeks before the sale, in a newspaper of general circulation in the county in which the property is sold.

HISTORY: 2018 ch. 163, § 40, effective July 14, 2018.

393A.410. Disposal of securities.

  1. The administrator shall not sell or otherwise liquidate a security until three (3) years after the administrator receives the security and gives the apparent owner notice under KRS 393A.290 that the administrator holds the security.
  2. The administrator shall not sell a security listed on an established stock exchange for less than the price prevailing on the exchange at the time of sale. The administrator may sell a security not listed on an established exchange by any commercially reasonable method.

HISTORY: 2018 ch. 163, § 41, effective July 14, 2018.

393A.420. Recovery of securities or value by owner.

  1. If securities are sold by the administrator before the expiration of three (3) years after their delivery to the administrator, a person making a claim under this chapter before the end of the three (3) year period shall be entitled to the proceeds of the sale of the securities or the market value of the securities at the time the claim is made, plus dividends, interest, and other increments up to the time the claim is made, less any deduction for expenses of the sale.
  2. A person making a claim under this chapter after the expiration of the three (3) year period shall be entitled to receive the securities delivered to the administrator by the holder, if the securities remain in the custody of the administrator, or the net proceeds received from the sale, and shall not be entitled to receive any appreciation in the value of the property occurring after the delivery to the administrator.

HISTORY: 2018 ch. 163, § 42, effective July 14, 2018.

393A.430. Purchaser owns property after sale.

A purchaser of property at a sale conducted by the administrator under this chapter takes the property free of all claims of the owner, a previous holder, or a person claiming through the owner or holder. The administrator shall execute documents necessary to complete the transfer of ownership to the purchaser.

HISTORY: 2018 ch. 163, § 43, effective July 14, 2018.

393A.440. Military medal or decoration.

  1. The administrator shall not sell a medal or decoration awarded for military service in the Armed Forces of the United States.
  2. The administrator, with the consent of the respective organization under paragraphs (a) to (c) of this subsection, may deliver a medal or decoration described in subsection (1) of this section to be held in custody for the owner, to:
    1. A military veterans organization qualified under 26 U.S.C. sec. 501(c)(19) ;
    2. The agency that awarded the medal or decoration;
    3. The Kentucky Historical Society, or any museum or historical society approved by the administrator; or
    4. A governmental entity.
  3. On delivery under subsection (2) of this section, the administrator shall not be responsible for safekeeping the medal or decoration.

HISTORY: 2018 ch. 163, § 44, effective July 14, 2018.

Deposit of Funds by Administrator

393A.450. Deposit of funds by administrator.

The administrator shall deposit in the State Treasury all funds received under this chapter, including proceeds from the sale of property under KRS 393A.400 to 393A.440 .

HISTORY: 2018 ch. 163, § 45, effective July 14, 2018.

393A.460. Administrator to retain records of property.

The administrator shall:

  1. Record and retain the name and last-known address of each person shown on a report filed under KRS 393A.220 to be the apparent owner of property delivered to the administrator;
  2. Record and retain the name and last-known address of each insured or annuitant and beneficiary shown on the report;
  3. For each policy of insurance or annuity contract listed in the report of an insurance company, record and retain the policy or account number, the name of the company, and the amount due or paid; and
  4. For each apparent owner listed in the report, record and retain the name of the holder that filed the report and the amount due or paid.

HISTORY: 2018 ch. 163, § 46, effective July 14, 2018.

393A.470. Expenses and service charges of administrator.

  1. In addition to the expenses permitted under KRS 393.250 , the administrator may deduct:
    1. Expenses of disposition of property delivered to the administrator under this chapter;
    2. Costs of mailing and publication in connection with property delivered to the administrator under this chapter;
    3. Reasonable service charges; and
    4. Expenses incurred in examining records of or collecting property from a putative holder or holder.
  2. In addition to any expenses in subsection (1) of this section, the administrator shall deduct the proportionate costs of advertisement and operations from the amount of any claim allowed in an amount greater than ten dollars ($10). The administrator shall deduct at least one dollar ($1).

HISTORY: 2018 ch. 163, § 47, effective July 14, 2018.

393A.480. Administrator holds property as custodian for owner.

Property received by the administrator under this chapter shall be held in custody for the benefit of the owner and shall not be owned by the state.

HISTORY: 2018 ch. 163, § 48, effective July 14, 2018.

Claim to Recover Property from Administrator

393A.490. Claim of another state to recover property.

  1. If the administrator knows that property held by the administrator under this chapter is subject to a superior claim of another state, the administrator shall:
    1. Report and pay or deliver the property to the other state; or
    2. Return the property to the holder so that the holder may pay or deliver the property to the other state.
  2. The administrator shall not be required to enter into an agreement to transfer property to the other state under subsection (1) of this section.

HISTORY: 2018 ch. 163, § 49, effective July 14, 2018.

393A.500. When property subject to recovery by another state.

  1. Property held under this chapter by the administrator shall be subject to the right of another state to take custody of the property if:
    1. The property was paid or delivered to the administrator because the records of the holder did not reflect a last-known address in the other state of the apparent owner and:
      1. The other state establishes that the last-known address of the apparent owner or other person entitled to the property was in the other state; or
      2. Under the law of the other state, the property has become subject to a claim by the other state of abandonment;
    2. The records of the holder did not accurately identify the owner of the property, the last-known address of the owner was in another state, and, under the law of the other state, the property has become subject to a claim by the other state of abandonment;
    3. The property was subject to the custody of the administrator of this state under KRS 393A.190 and, under the law of the state of domicile of the holder, the property has become subject to a claim of abandonment by the state of domicile of the holder; or
    4. The property:
      1. Is a sum payable on a traveler’s check, money order, or similar instrument that was purchased in the other state and delivered to the administrator under KRS 393A.200 ; and
      2. Under the law of the other state, has become subject to a claim by the other state of abandonment.
  2. A claim by another state to recover property under this section shall be presented in a form prescribed by the administrator, unless the administrator waives presentation of the form.
  3. The administrator shall decide a claim under this section not later than ninety (90) days after it is presented. If the administrator determines that the other state is entitled under subsection (1) of this section to custody of the property, the administrator shall allow the claim and pay or deliver the property to the other state.
  4. The administrator may require another state, before recovering property under this section, to agree to indemnify this state and its agents, officers, and employees against any liability on a claim to the property.

HISTORY: 2018 ch. 163, § 50, effective July 14, 2018.

393A.510. Claim for property by person claiming to be owner.

  1. A person claiming to be the owner of property held under this chapter by the administrator may file a claim for the property on a form prescribed by the administrator. The claimant shall verify the claim as to its completeness and accuracy.
  2. The administrator may permit persons claiming to be the owner of property to submit claims in electronic format.
  3. The administrator may waive the requirement in subsection (1) of this section and may pay or deliver property directly to a person if:
    1. The person receiving the property or payment is shown to be the apparent owner included on a report filed under KRS 393A.220 ;
    2. The administrator reasonably believes the person is entitled to receive the property or payment; and
    3. The property has a value of less than two hundred fifty dollars ($250).

HISTORY: 2018 ch. 163, § 51, effective July 14, 2018.

393A.520. When administrator must honor claim for property.

  1. The administrator shall pay or deliver property to a claimant under KRS 393A.510(1) if the administrator receives evidence sufficient to establish to the satisfaction of the administrator that the claimant is the owner of the property.
  2. Not later than ninety (90) days after a claim is filed under KRS 393A.510(1), the administrator shall allow or deny the claim and give the claimant notice in a record of the decision.
  3. If the claim is denied under subsection (2) of this section:
    1. The administrator shall inform the claimant of the reason for the denial and specify what additional evidence, if any, is required for the claim to be allowed;
    2. The claimant may file an amended claim with the administrator or request an administrative hearing under KRS 393A.540 ; and
    3. The administrator shall consider an amended claim filed under paragraph (b) of this subsection as an initial claim.
  4. If the administrator does not take action on a claim during the ninety (90) day period following the filing of a claim under KRS 393A.510(1), the claim shall be deemed denied.

HISTORY: 2018 ch. 163, § 52, effective July 14, 2018.

393A.530. Allowance of claim for property.

  1. Not later than thirty (30) days after a claim is allowed under KRS 393A.520(2), the administrator shall pay or deliver to the owner the property or pay to the owner the net proceeds of a sale of the property. On request of the owner, the administrator may sell or liquidate a security and pay the net proceeds to the owner, even if the security had been held by the administrator for less than three (3) years or the administrator has not complied with the notice requirements under KRS 393A.410 .
  2. Property held under this chapter by the administrator shall be subject to a claim for the payment of an enforceable debt the owner owes in this state for:
    1. Child-support arrearages, including child-support collection costs and child-support arrearages that are combined with maintenance;
    2. A civil or criminal fine or penalty, court costs, a surcharge, or restitution imposed by a final order of an administrative agency or a final court judgment; or
    3. State or local taxes, penalties, and interest that have been determined to be delinquent or as to which notice has been recorded with the county sheriff or local taking authority.
  3. Before delivery or payment to an owner under subsection (1) of this section of property or payment to the owner of net proceeds of a sale of the property, the administrator first shall apply the property or net proceeds to a debt under subsection (2) of this section the administrator determines is owed by the owner. The administrator shall pay the amount to the appropriate state or local agency and notify the owner of the payment.
  4. The administrator may make periodic inquiries of state and local agencies in the absence of a claim filed under KRS 393A.510 to determine whether an apparent owner included in the unclaimed-property records of this state has enforceable debts described in subsection (2) of this section. The administrator first shall apply the property or net proceeds of a sale of property held by the administrator to a debt under subsection (2) of this section of an apparent owner which appears in the records of the administrator and deliver the amount to the appropriate state or local agency. The administrator shall notify the apparent owner of the payment.

HISTORY: 2018 ch. 163, § 53, effective July 14, 2018.

393A.540. Filing a claim under KRS 393A.510 — Request for administrative hearing.

Not later than one (1) year after filing a claim under KRS 393A.510(1), the claimant may request in writing an administrative hearing, to be conducted in accordance with KRS Chapter 13B.

HISTORY: 2018 ch. 163, § 54, effective July 14, 2018.

Verified Report of Property — Examination of Records

393A.550. Verified report of property.

If a person does not file a report required by KRS 393A.220 or the administrator believes that a person may have filed an inaccurate, incomplete, or false report, the administrator may require the person to file a verified report in a form prescribed by the administrator. The verified report shall:

  1. State whether the person is holding property reportable under this chapter;
  2. Describe property not previously reported or about which the administrator has inquired;
  3. Specifically identify property described under subsection (2) of this section about which there is a dispute whether it is reportable under this chapter; and
  4. State the amount or value of the property.

HISTORY: 2018 ch. 163, § 55, effective July 14, 2018.

393A.560. Examination of records to determine compliance.

The administrator, at reasonable times and on reasonable notice, may:

  1. Examine the records of a person, including examination of appropriate records in the possession of an agent of the person under examination, if the records are reasonably necessary to determine whether the person has complied with this chapter;
  2. Issue an administrative subpoena requiring the person or agent of the person to make records available for examination; and
  3. Bring an action seeking judicial enforcement of the subpoena.

HISTORY: 2018 ch. 163, § 56, effective July 14, 2018.

393A.570. Administrative regulations for conducting examination.

  1. The administrator shall promulgate administrative regulations in accordance with KRS Chapter 13A governing procedures and standards for an examination under KRS 393A.560 , including rules for use of an estimation, extrapolation, and statistical sampling in conducting an examination.
  2. An examination under KRS 393A.560 shall be performed under administrative regulations promulgated under subsection (1) of this section and with generally accepted examination practices and standards applicable to an unclaimed-property examination.
  3. If a person subject to examination under KRS 393A.560 has filed the reports required under KRS 393A.220 and 393A.550 and has retained the records required by KRS 393A.250 , the following shall apply to the examination:
    1. The examination shall include a review of the person’s records;
    2. The examination shall not be based on an estimate unless the person expressly consents in a record to the use of an estimate; and
    3. The person conducting the examination shall consider the evidence presented in good faith by the person in preparing the findings of the examination under KRS 393A.610 .

HISTORY: 2018 ch. 163, § 57, effective July 14, 2018.

393A.580. Records obtained in examination.

Records obtained and records, including work papers, compiled by the administrator in the course of conducting an examination under KRS 393A.560 :

  1. Shall be subject to the confidentiality and security provisions of KRS 393A.770 to 393A.830 and are not public records;
  2. May be used by the administrator in an action to collect property or otherwise enforce this chapter;
  3. May be used in a joint examination conducted with another state, the United States, a foreign country or subordinate unit of a foreign country, or any other governmental entity if the governmental entity conducting the examination is legally bound to maintain the confidentiality and security of information obtained from a person subject to examination in a manner substantially equivalent to KRS 393A.770 to 393A.830 ;
  4. Shall be disclosed, on request, to the person that administers the unclaimed property law of another state for that state’s use in circumstances equivalent to circumstances described in this KRS 393A.550 to 393A.650 , if the other state is required to maintain the confidentiality and security of information obtained in a manner substantially equivalent to KRS 393A.770 to 393A.830 ;
  5. Shall be produced by the administrator under an administrative or judicial subpoena or administrative or court order; and
  6. Shall be produced by the administrator on request of the person subject to the examination in an administrative or judicial proceeding relating to the property.

HISTORY: 2018 ch. 163, § 58, effective July 14, 2018.

393A.590. Evidence of unpaid debt or undischarged obligation.

  1. A record of a putative holder showing an unpaid debt or undischarged obligation shall be prima facie evidence of the debt or obligation.
  2. A putative holder may establish by a preponderance of the evidence that there is no unpaid debt or undischarged obligation for a debt or obligation described in subsection (1) of this section or that the debt or obligation was not, or no longer is, a fixed and certain obligation of the putative holder.
  3. A putative holder may overcome prima facie evidence under subsection (1) of this section by establishing by a preponderance of the evidence that a check, draft, or similar instrument was:
    1. Issued as an unaccepted offer in settlement of an unliquidated amount;
    2. Issued but later was replaced with another instrument because the earlier instrument was lost or contained an error that was corrected;
    3. Issued to a party affiliated with the issuer;
    4. Paid, satisfied, or discharged;
    5. Issued in error;
    6. Issued without consideration;
    7. Issued but there was a failure of consideration;
    8. Voided not later than ninety (90) days after issuance for a valid business reason set forth in a contemporaneous record; or
    9. Issued but not delivered to the third-party payee for a sufficient reason recorded within a reasonable time after issuance.
  4. In asserting a defense under this section, a putative holder may present evidence of a course of dealing between the putative holder and the apparent owner or of custom and practice.

HISTORY: 2018 ch. 163, § 59, effective July 14, 2018.

393A.600. Failure of person examined to retain records.

If a person subject to examination under KRS 393A.560 does not retain the records required by KRS 393A.250 , the administrator may determine the value of property due using a reasonable method of estimation based on all information available to the administrator, including extrapolation and use of statistical sampling when appropriate and necessary, consistent with examination procedures and standards adopted under KRS 393A.570 .

HISTORY: 2018 ch. 163, § 60, effective July 14, 2018.

393A.610. Report to person whose records were examined.

At the conclusion of an examination under KRS 393A.560 , the administrator shall provide to the person whose records were examined a complete and unredacted examination report that specifies:

  1. The work performed;
  2. The property types reviewed;
  3. The methodology of any estimation technique, extrapolation, or statistical sampling used in conducting the examination;
  4. Each calculation showing the value of property determined to be due; and
  5. The findings of the person conducting the examination.

HISTORY: 2018 ch. 163, § 61, effective July 14, 2018.

393A.620. Complaint to administrator about conduct of person conducting examination.

  1. If a person subject to examination under KRS 393A.560 believes the person conducting the examination has made an unreasonable or unauthorized request or is not proceeding expeditiously to complete the examination, the person in a record may ask the administrator to intervene and take appropriate remedial action, including countermanding the request of the person conducting the examination, imposing a time limit for completion of the examination, or reassigning the examination to another person.
  2. If a person in a record requests a conference with the administrator to present matters that are the basis of a request under subsection (1) of this section, the administrator shall hold the conference not later than thirty (30) days after receiving the request. The administrator may hold the conference in person, by telephone, or by electronic means.
  3. If a conference is held under subsection (2) of this section, not later than thirty (30) days after the conference ends, the administrator shall provide a report in a record of the conference to the person that requested the conference.

HISTORY: 2018 ch. 163, § 62, effective July 14, 2018.

393A.630. Administrator’s contract with another to conduct examination.

  1. As used in this section, “related to the administrator” means an individual who is:
    1. The administrator’s spouse, partner in a civil union, domestic partner, or reciprocal beneficiary;
    2. The administrator’s child, stepchild, grandchild, parent, stepparent, sibling, stepsibling, half-sibling, aunt, uncle, niece, or nephew;
    3. A spouse, partner in a civil union, domestic partner, or reciprocal beneficiary of an individual in paragraph (b) of this subsection; or
    4. Any individual residing in the administrator’s household.
  2. The administrator may contract with a person to conduct an examination under KRS 393A.550 to 393A.650 .
  3. If the person with whom the administrator contracts under subsection (2) of this section is:
    1. An individual, the individual shall not be related to the administrator; or
    2. A business entity, the entity shall not be owned in whole or in part by the administrator or an individual related to the administrator.
  4. If the administrator contracts with a person under subsection (2) of this section:
    1. The contract may provide for compensation of the person based on a fixed fee, hourly fee, or contingent fee;
    2. A contingent fee arrangement shall not provide for a payment that exceeds ten percent (10%) of the amount or value of property paid or delivered as a result of the examination; and
    3. On request by a person subject to examination by a contractor, the administrator shall deliver to the person a complete and unredacted copy of the contract and any contract between the contractor and a person employed or engaged by the contractor to conduct the examination.
  5. A contract under subsection (2) of this section shall be subject to KRS 61.870 to 61.884 .

HISTORY: 2018 ch. 163, § 63, effective July 14, 2018.

393A.640. Limit of future employment.

The administrator or an individual employed by the administrator who participates in, recommends, or approves the award of a contract under KRS 393A.630 on or after July 14, 2018, shall not be employed by, contract with, or compensated in any capacity by the contractor or an affiliate of the contractor for two (2) years after the latest of participation in, recommendation of, or approval of the award or conclusion of the contract.

HISTORY: 2018 ch. 163, § 64, effective July 14, 2018.

393A.650. Determination of liability for unreported reportable property.

If the administrator determines from an examination conducted under KRS 393A.560 that a putative holder failed or refused to pay or deliver to the administrator property which is reportable under this chapter, the administrator shall issue a determination of the putative holder’s liability to pay or deliver and give notice in a record to the putative holder of the determination.

HISTORY: 2018 ch. 163, § 65, effective July 14, 2018.

Determination of Liability — Putative Holder Remedies

393A.660. Informal conference.

  1. Not later than thirty (30) days after receipt of a notice under KRS 393A.560 , the putative holder may request an informal conference with the administrator to review the determination. Except as otherwise provided in this section, the administrator may designate an employee to act on behalf of the administrator.
  2. If a putative holder makes a timely request under subsection (1) of this section for an informal conference:
    1. Not later than twenty (20) days after the date of the request, the administrator shall set the time and place of the conference;
    2. The administrator shall give the putative holder notice in a record of the time and place of the conference;
    3. The conference may be held in person, by telephone, or by electronic means, as determined by the administrator;
    4. The request tolls the ninety (90) day period under KRS 393A.680 and 393A.690 until notice of a decision under paragraph (g) of this subsection has been given to the putative holder or the putative holder withdraws the request for the conference;
    5. The conference may be postponed, adjourned, and reconvened as the administrator determines appropriate;
    6. The administrator or administrator’s designee with the approval of the administrator may modify a determination made under KRS 393A.650 or withdraw it; and
    7. The administrator shall issue a decision in a record and provide a copy of the record to the putative holder and examiner not later than twenty (20) days after the conference ends.
  3. A conference under subsection (2) of this section shall not be an administrative remedy and shall not be a contested case subject to KRS Chapter 13B. An oath shall not be required and rules of evidence shall not apply in the conference.
  4. At a conference under subsection (2) of this section, the putative holder shall be given an opportunity to confer informally with the administrator and the person that examined the records of the putative holder to:
    1. Discuss the determination made under KRS 393A.650 ; and
    2. Present any issue concerning the validity of the determination.
  5. If the administrator fails to act within the period prescribed in subsection (2)(a) or (g) of this section, the failure shall not affect a right of the administrator, except that interest shall not accrue on the amount for which the putative holder was determined to be liable under KRS 393A.650 during the period in which the administrator failed to act until the earlier of:
    1. The date under KRS 393A.680 the putative holder initiates administrative review or files an action under KRS 393A.690 ; or
    2. Ninety (90) days after the putative holder received notice of the administrator’s determination under KRS 393A.680 if no review was initiated under KRS 393A.680 and no action was filed under KRS 393A.690 .
  6. The administrator may hold an informal conference with a putative holder about a determination under KRS 393A.650 without a request at any time before the putative holder initiates administrative review under KRS 393A.680 or files an action under KRS 393A.690 .
  7. Interest and penalties under KRS 393A.730 continue to accrue on property not reported, paid, or delivered as required by this chapter after the initiation, and during the pendency, of an informal conference under this section.

HISTORY: 2018 ch. 163, § 66, effective July 14, 2018.

393A.670. Review of administrator’s determination.

A putative holder may seek relief from a determination under KRS 393A.650 by:

  1. Administrative review under KRS 393A.680 ; or
  2. Judicial review under KRS 393A.690 .

HISTORY: 2018 ch. 163, § 67, effective July 14, 2018.

393A.680. Administrative review.

  1. Not later than ninety (90) days after receiving notice of the administrator’s determination under KRS 393A.650 , a putative holder may initiate a proceeding under KRS Chapter 13B for review of the administrator’s determination.
  2. A final decision in an administrative proceeding initiated under subsection (1) of this section shall be subject to judicial review under KRS Chapter 13B.

HISTORY: 2018 ch. 163, § 68, effective July 14, 2018.

393A.690. Judicial remedy.

  1. Not later than ninety (90) days after receiving notice of the administrator’s determination under KRS 393A.650 , the putative holder may:
    1. File an action against the administrator in the appropriate court challenging the administrator’s determination of liability and seeking a declaration that the determination is unenforceable, in whole or in part; or
    2. Pay the amount or deliver the property determined by the administrator to be paid or delivered to the administrator and, not later than six (6) months after payment or delivery, file an action against the administrator in the appropriate court for a refund of all or part of the amount paid or return of all or part of the property delivered.
  2. If a putative holder pays or delivers property the administrator determined shall be paid or delivered to the administrator at any time after the putative holder files an action under subsection (1)(a) of this section, the court shall continue the action as if it had been filed originally as an action for a refund or return of property under subsection (1)(b) of this section.

HISTORY: 2018 ch. 163, § 69, effective July 14, 2018.

Enforcement by Administrator

393A.700. Judicial action to enforce liability.

  1. If a determination under KRS 393A.650 becomes final and not subject to administrative or judicial review, the administrator may commence an action in the court or in an appropriate court of another state to enforce the determination and secure payment or delivery of past due, unpaid, or undelivered property. The action shall be brought not later than one (1) year after the determination becomes final.
  2. In an action under subsection (1) of this section, if no court in this state has jurisdiction over the defendant, the administrator may commence an action in any court having jurisdiction over the defendant.

HISTORY: 2018 ch. 163, § 70, effective July 14, 2018.

393A.710. Interstate and international agreement — Cooperation.

  1. Subject to subsection (2) of this section, the administrator may:
    1. Exchange information with another state or foreign country relating to property presumed abandoned or relating to the possible existence of property presumed abandoned; and
    2. Authorize in a record another state or foreign country or a person acting on behalf of the other state or country to examine its records of a putative holder as provided in KRS 393A.550 to 393A.650 .
  2. An exchange or examination under subsection (1) of this section may be done only if the state or foreign country has confidentiality and security requirements substantially equivalent to those in KRS 393A.770 to 393A.830 or agrees in a record to be bound by this state’s confidentiality and security requirements.

HISTORY: 2018 ch. 163, § 71, effective July 14, 2018.

393A.720. Action involving another state or foreign country.

  1. The administrator may join another state or foreign country to examine and seek enforcement of this chapter against a putative holder.
  2. On request of another state or foreign country, the Attorney General may commence an action on behalf of the other state or country to enforce, in this state, the law of the other state or country against a putative holder subject to a claim by the other state or country, if the other state or country agrees to pay costs incurred by the Attorney General in the action.
  3. The administrator may request the official authorized to enforce the unclaimed property law of another state or foreign country to commence an action to recover property in the other state or country on behalf of the administrator. This state shall pay the costs, including reasonable attorney’s fees and expenses, incurred by the other state or foreign country in an action under this subsection.
  4. The administrator may pursue an action on behalf of this state to recover property subject to this chapter but delivered to the custody of another state if the administrator believes the property is subject to the custody of the administrator.
  5. The administrator may retain an attorney in this state, another state, or a foreign country to commence an action to recover property on behalf of the administrator and may agree to pay attorney’s fees based in whole or in part on a fixed fee, hourly fee, or a percentage of the amount or value of property recovered in the action.
  6. Expenses incurred by this state in an action under this section may be paid from property received under this chapter or the net proceeds of the property. Expenses paid to recover property shall not be deducted from the amount that is subject to a claim under this chapter by the owner.

HISTORY: 2018 ch. 163, § 72, effective July 14, 2018.

393A.730. Interest and penalty for failure to act in timely manner.

  1. A holder that fails to report, pay, or deliver property within the time prescribed by this chapter shall pay to the administrator interest at the tax interest rate determined under KRS 131.183 on the property or value of the property from the date the property should have been reported, paid, or delivered to the administrator until the date reported, paid, or delivered.
  2. Except as otherwise provided in KRS 393A.740 or 393A.750 , the administrator may require a holder that fails to report, pay, or deliver property within the time prescribed by this chapter to pay to the administrator, in addition to interest included under subsection (1) of this section, a civil penalty of two hundred dollars ($200) for each day the duty is not performed, up to a cumulative maximum amount of five thousand dollars ($5,000).

HISTORY: 2018 ch. 163, § 73, effective July 14, 2018.

393A.740. Other civil penalties.

  1. If a holder enters into a contract or other arrangement for the purpose of evading an obligation under this chapter or otherwise willfully fails to perform a duty imposed on the holder under this chapter, the administrator may require the holder to pay the administrator, in addition to interest as provided in KRS 393A.730 , a civil penalty of one thousand dollars ($1,000) for each day the obligation is evaded or the duty is not performed, up to a cumulative maximum amount of twenty-five thousand dollars ($25,000), plus twenty-five percent (25%) of the amount or value of property that should have been but was not reported, paid, or delivered as a result of the evasion or failure to perform.
  2. If a holder makes a fraudulent report under this chapter, the administrator may require the holder to pay to the administrator, in addition to interest under KRS 393A.730 , a civil penalty of one thousand dollars ($1,000) for each day from the date the report was made until corrected, up to a cumulative maximum of twenty-five thousand dollars ($25,000), plus twenty-five percent (25%) of the amount or value of any property that should have been reported but was not included in the report or was underreported.

HISTORY: 2018 ch. 163, § 74, effective July 14, 2018.

393A.750. Waiver of interest and penalty.

The administrator:

  1. May waive, in whole or in part, interest under KRS 393A.730(1) and penalties under KRS 393A.730(2) or KRS 393A.740 ; and
  2. Shall waive a penalty under KRS 393A.730(2) if the administrator determines that the holder acted in good faith and without negligence.

HISTORY: 2018 ch. 163, § 75, effective July 14, 2018.

Agreement to Locate Property of Apparent Owner Held by Administrator

393A.760. Right of agent of apparent owner to recover property held by administrator.

  1. An apparent owner that contracts with another person to locate, deliver, recover, or assist in the location, delivery, or recovery of property of the apparent owner which is held by the administrator may designate the person as the agent of the apparent owner. The designation shall be in a record signed by the apparent owner.
  2. The administrator shall give the agent of the apparent owner all information concerning the property which the apparent owner is entitled to receive, including information that otherwise is confidential information under KRS 393A.780 .
  3. If authorized by the apparent owner, the agent of the apparent owner may bring an action against the administrator on behalf of and in the name of the apparent owner.

HISTORY: 2018 ch. 163, § 76, effective July 14, 2018.

Confidentiality and Security of Information

393A.770. Definitions — Applicability.

  1. As used in KRS 393A.770 to 393A.830 , “personal information” means:
    1. Information that identifies or reasonably can be used to identify an individual, such as first and last name in combination with the individual’s:
      1. Social Security number or other government-issued number or identifier;
      2. Date of birth;
      3. Home or physical address;
      4. Electronic-mail address or other online contact information or Internet provider address;
      5. Financial account number or credit or debit card number;
      6. Biometric data, health or medical data, or insurance information; or
      7. Passwords or other credentials that permit access to an online or other account;
    2. Personally identifiable financial or insurance information, including nonpublic personal information defined by applicable federal law; and
    3. Any combination of data that, if accessed, disclosed, modified, or destroyed without authorization of the owner of the data or if lost or misused, would require notice or reporting under KRS 365.720 to 365.730 and federal privacy and data security law, whether or not the administrator or the administrator’s agent is subject to the law.
  2. Any provision of KRS 393A.770 to 393A.830 that applies to the administrator or the administrator’s records applies to an administrator’s agent or the agent’s records.

HISTORY: 2018 ch. 163, § 77, effective July 14, 2018.

393A.780. Confidential information.

  1. Except as otherwise provided in this chapter, the following are confidential and exempt from public inspection or disclosure:
    1. Records of the administrator and the administrator’s agent related to the administration of this chapter;
    2. Reports and records of a holder in the possession of the administrator or the administrator’s agent; and
    3. Personal information and other information derived or otherwise obtained by or communicated to the administrator or the administrator’s agent from an examination under this chapter of the records of a person.
  2. A record or other information that is confidential under law of this state other than this chapter, another state, or the United States continues to be confidential when disclosed or delivered under this chapter to the administrator or administrator’s agent.

HISTORY: 2018 ch. 163, § 78, effective July 14, 2018.

393A.790. When confidential information may be disclosed.

  1. When reasonably necessary to enforce or implement this chapter, the administrator may disclose confidential information concerning property held by the administrator or the administrator’s agent only to:
    1. An apparent owner or the apparent owner’s personal representative, attorney, other legal representative, relative, or agent designated under KRS 393A.760 to have the information;
    2. The personal representative, executor, other legal representative, relative of a deceased apparent owner, agent designated under KRS 393A.760 by the deceased apparent owner, or a person entitled to inherit from the deceased apparent owner;
    3. Another department or agency of this state or the United States;
    4. The person that administers the unclaimed property law of another state, if the other state accords substantially reciprocal privileges to the administrator of this state if the other state is required to maintain the confidentiality and security of information obtained in a manner substantially equivalent to KRS 393A.770 to 393A.830 ; or
    5. A person subject to an examination as required by KRS 393A.580(6).
  2. Except as otherwise provided in KRS 393A.780(1), the administrator shall include on the Web site or in the database required by KRS 393A.290(2)(b) the name of each apparent owner of property held by the administrator. The administrator may include in published notices, printed publications, telecommunications, the Internet, or other media and on the Web site or in the database additional information concerning the apparent owner’s property if the administrator believes the information will assist in identifying and returning property to the owner and does not disclose personal information except the home or physical address of an apparent owner.
  3. The administrator and the administrator’s agent shall not use confidential information provided to them or in their possession, except as expressly authorized by this chapter or required by law other than this chapter.

HISTORY: 2018 ch. 163, § 79, effective July 14, 2018.

Legislative Research Commission Note.

(7/14/2018). Although 2018 Ky. Acts ch. 163, sec. 79, contained a citation to "Section 60 of this Act" (codified as KRS 393A.600 ) in subsection (1)(e) of this statute, it is clear from the context that Section 58 (codified as KRS 393A.580 ) was intended, and this manifest clerical or typographical error was corrected in codification under the authority of KRS 7.136 .

393A.800. Confidentiality agreement.

A person to be examined under KRS 393A.560 may require, as a condition of disclosure of the records of the person to be examined, that each person having access to the records disclosed in the examination execute and deliver to the person to be examined a confidentiality agreement that:

  1. Is in a form that is reasonably satisfactory to the  administrator; and
  2. Requires the person having access to the records to  comply with the provisions of KRS 393A.770 to 393A.830 applicable  to the person.

HISTORY: 2018 ch. 163, § 80, effective July 14, 2018.

393A.810. No confidential information in notice.

Except as otherwise provided in KRS 393A.270 and 393A.280 , a holder shall not be required under this chapter to include confidential information in a notice the holder is required to provide to an apparent owner under this chapter.

HISTORY: 2018 ch. 163, § 81, effective July 14, 2018.

393A.820. Security of information.

  1. If a holder is required to include confidential information  in a report to the administrator, the information shall be provided  by a secure means.
  2. If confidential information in a record  is provided to and maintained by the administrator or administrator’s  agent as required by this chapter, the administrator or agent shall:
    1. Implement administrative, technical,  and physical safeguards to protect the security, confidentiality,  and integrity of the information as required by KRS 365.720 to 365.730 and federal  privacy and data security law, whether or not the administrator or  the administrator’s agent is subject to the law;
    2. Protect against reasonably anticipated  threats or hazards to the security, confidentiality, or integrity  of the information; and
    3. Protect against unauthorized access to  or use of the information which could result in substantial harm or  inconvenience to a holder or the holder’s customers, including  insureds, annuitants, and policy or contract owners and their beneficiaries.
  3. The administrator:
    1. After notice and comment, shall adopt  and implement a security plan that identifies and assesses reasonably  foreseeable internal and external risks to confidential information  in the administrator’s possession and seeks to mitigate the  risks; and
    2. Shall ensure that an administrator’s  agent adopts and implements a similar plan with respect to confidential  information in the agent’s possession.
  4. The administrator and the administrator’s  agent shall educate and train their employees regarding the plan adopted  under subsection (3) of this section.
  5. The administrator and the administrator’s  agent shall in a secure manner return or destroy all confidential  information no longer reasonably needed under this chapter.

HISTORY: 2018 ch. 163, § 82, effective July 14, 2018.

393A.830. Security breach.

  1. Except to the extent prohibited by law other than this  chapter, the administrator or administrator’s agent shall notify  a holder as soon as practicable of:
    1. A suspected loss, misuse or unauthorized access, disclosure,  modification, or destruction of confidential information obtained  from the holder in the possession of the administrator or an administrator’s  agent; and
    2. Any interference with operations in any  system hosting or housing confidential information which:
      1. Compromises the security, confidentiality,  or integrity of the information; or
      2. Creates a substantial risk of identity  fraud or theft.
  2. Except as necessary to inform an insurer,  attorney, investigator, or others as required by law, the administrator  and an administrator’s agent shall not disclose, without the  express consent in a record of the holder, an event described in subsection  (1) of this section to a person whose confidential information was  supplied by the holder.
  3. If an event described in subsection (1)  of this section occurs, the administrator and the administrator’s  agent shall:
    1. Take action necessary for the holder  to understand and minimize the effect of the event and determine its  scope; and
    2. Cooperate with the holder with respect  to:
      1. Any notification required by law concerning  a data or other security breach; and
      2. A regulatory inquiry, litigation, or  similar action.

HISTORY: 2018 ch. 163, § 83, effective July 14, 2018.

Miscellaneous Provisions

393A.840. Uniformity of application and construction.

In applying and construing this chapter, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact the Revised Uniform Unclaimed Property Act.

HISTORY: 2018 ch. 163, § 84, effective July 14, 2018.

393A.850. Relation to Electronic Signatures in Global and National Commerce Act.

This chapter modifies, limits, or supersedes 15 U.S.C. secs. 7001 et seq., but does not modify, limit, or supersede 15 U.S.C. sec. 7001(c) , or authorize electronic delivery of any of the notices described in 15 U.S.C. sec. 7003(b) .

HISTORY: 2018 ch. 163, § 85, effective July 14, 2018.

393A.860. Transitional provision.

  1. An initial report filed under this chapter for property  that was not required to be reported before July 14, 2018, but that  is required to be reported under this chapter, shall include all items  of property that would have been presumed abandoned during the ten  (10) year period preceding July 14, 2018, as if this chapter had been  in effect during that period.
  2. This chapter shall not relieve a holder of a duty that  arose before July 14, 2018 to report, pay, or deliver property. Subject  to KRS 393A.390(2) and (3), a holder that did not comply with the law governing unclaimed  property before July 14, 2018 shall be subject to applicable provisions  for enforcement and penalties in effect before July 14, 2018.

HISTORY: 2018 ch. 163, § 86, effective July 14, 2018.

CHAPTER 394 Wills

394.010. “Will” defined.

As used in this chapter, unless the context requires otherwise, “will” means a last will or testament, codicil, appointment by will, writing in the nature of a will in exercise of a power, and any other testamentary disposition.

History. 4824: amend. Acts 1964, ch. 128, § 1 (1).

NOTES TO DECISIONS

1.Form.

No particular form is required for a will, if an instrument be in the form of a deed, yet if it appears that the maker did not intend that the instrument be operative until his death, then it is a will. Simon v. Wildt, 84 Ky. 157 , 7 Ky. L. Rptr. 800 , 1886 Ky. LEXIS 49 (Ky. Ct. App. 1886).

Of all instruments a will is least governed by form, the form being unimportant, except as indicating intent. Hopson v. Ewing, 353 S.W.2d 203, 1961 Ky. LEXIS 2 ( Ky. 1961 ).

The absence of dispositive words such as “give,” “devise,” or “bequeath” does not necessarily stamp an instrument as nontestamentary. Hopson v. Ewing, 353 S.W.2d 203, 1961 Ky. LEXIS 2 ( Ky. 1961 ).

2.Intent of Testator.

Where the language is plain and free from ambiguity, the will speaks for itself, and technical rules of construction will not be resorted to. Weisser's Trustee v. Mulloy, 276 Ky. 427 , 124 S.W.2d 496, 1939 Ky. LEXIS 535 ( Ky. 1939 ).

In determining intent of testator, the will and its codicils are to be considered as a whole in the light of the circumstances and conditions at the time they were made. McGinnis v. Moore, 278 Ky. 587 , 129 S.W.2d 141, 1939 Ky. LEXIS 473 ( Ky. 1939 ).

In construing wills the intent of the testator is of prime importance, and the intent will if possible be determined from the will as a whole rather than from any isolated part thereof. Pfeiffer v. Gates, 281 Ky. 445 , 136 S.W.2d 542, 1940 Ky. LEXIS 47 ( Ky. 1940 ).

In construing wills, the intention of the testator must be ascertained and given effect. The intention must be gathered from the language used, and technical rules of construction will not be resorted to unless the language is ambiguous or obscure. Testamentary language which by long usage and judicial recognition has come to have a fixed meaning will be treated as having been used with that meaning by the testator. Hopson's Trustee v. Hopson, 282 Ky. 181 , 138 S.W.2d 365, 1940 Ky. LEXIS 156 ( Ky. 1940 ).

The fundamental rule as to the construction of wills is that the intention of the testator, as gathered from his entire will, must prevail unless it be opposed to some positive provision of the will or some general principle of public policy. All technical rules of construction must give way before the intention of the testator, taking into consideration the entire will. Corbin v. Manley, 291 Ky. 289 , 164 S.W.2d 394, 1942 Ky. LEXIS 223 ( Ky. 1942 ).

3.— Will Void for Vagueness.

If provisions of will are so indefinite and ambiguous that court cannot determine testator’s intention, they will be held void and property will pass as intestate. Winn v. William, 292 Ky. 44 , 165 S.W.2d 961, 1942 Ky. LEXIS 24 ( Ky. 1942 ).

If a writing is so uncertain, confused or ambiguous that the testator’s intentions cannot be reasonably ascertained, it is void as a testamentary instrument. Johnson v. Johnson, 312 Ky. 773 , 229 S.W.2d 743, 1950 Ky. LEXIS 753 ( Ky. 1950 ).

4.— Ambiguities.

An ambiguity will be found if the language may apply equally as well to two different things. Lane v. Railey, 280 Ky. 319 , 133 S.W.2d 74, 1939 Ky. LEXIS 120 ( Ky. 1939 ).

In construing a will every aspect must be dealt with and given effect insofar as possible and an attempt should be made to reconcile any apparent inconsistencies in order to give effect to the testator’s intent. Lane v. Railey, 280 Ky. 319 , 133 S.W.2d 74, 1939 Ky. LEXIS 120 ( Ky. 1939 ).

Where there is a patent ambiguity in a will, evidence of statements of the testator cannot be considered as an aid to ascertaining an intention not expressed, or one contrary to that which the language reveals, or for the purpose of enlarging or diminishing the estate or interest devised or to vary the legal effect of the language used. Jennings v. Jennings, 299 Ky. 779 , 187 S.W.2d 459, 1945 Ky. LEXIS 774 ( Ky. 1945 ).

5.— Presumption Against Intestacy.

A testator is presumed to have intended to fully dispose of his property and a presumption against partial intestacy will be used to resolve any ambiguities. Lane v. Railey, 280 Ky. 319 , 133 S.W.2d 74, 1939 Ky. LEXIS 120 ( Ky. 1939 ).

A will must be so construed as to avoid intestacy unless it clearly appears from the language of the will that the testator intended to die intestate as to part of his estate. Hopson's Trustee v. Hopson, 282 Ky. 181 , 138 S.W.2d 365, 1940 Ky. LEXIS 156 ( Ky. 1940 ).

6.“Cash.”

Where testatrix, intending to dispose of all her property, bequeathed “cash” to her brother and sister, and at time of her death had only $25 in currency, but over four thousand dollars in bank deposits, checks, stocks, bonds, and other intangible property, the word “cash” must be construed in its broader sense as including all intangible property which the testator thought of in terms of cash. Lane v. Railey, 280 Ky. 319 , 133 S.W.2d 74, 1939 Ky. LEXIS 120 ( Ky. 1939 ).

7.“Funds.”

Where will made specific legacies of money to several persons, some of whom were heirs-at-law of the testator, and then recited that any “funds” left after paying the legacies should be divided among the “above heirs,” it was held that the word “funds” was intended to include all of testator’s estate, real and personal. Jennings v. Jennings, 299 Ky. 779 , 187 S.W.2d 459, 1945 Ky. LEXIS 774 ( Ky. 1945 ).

8.Disposition of Property.

Where the mother gave a note to her children providing that it should be paid out of her estate, and that it was “for value received” and no value was in fact received, it was an attempted testamentary disposition of property and must have been executed according to the law of wills in order to be valid. Sullivan v. Sullivan, 122 Ky. 707 , 92 S.W. 966, 29 Ky. L. Rptr. 239 , 1906 Ky. LEXIS 93 ( Ky. 1906 ).

Note written by deceased, addressed to his mother and asking her to pay his funeral expenses and debts, and enclosed in an envelope containing a life insurance policy in which mother was named as beneficiary, could not be probated as a will because it did not purport to dispose of any property. Quinlan v. Quinlan, 293 Ky. 565 , 169 S.W.2d 617, 1943 Ky. LEXIS 666 ( Ky. 1943 ).

An instrument which does not dispose of property is not a will. Brummett v. Brummett, 331 S.W.2d 719, 1960 Ky. LEXIS 127 ( Ky. 1960 ).

9.— Future Estate.

A will must give future estate and where a writing, though it stated in the contents that it was a will, gave a present estate vesting before the death of the testator it cannot be deemed a will. Ward v. Ward, 104 Ky. 857 , 48 S.W. 411, 20 Ky. L. Rptr. 986 , 1898 Ky. LEXIS 235 ( Ky. 1898 ).

Where the testator called the instrument a will and used the words “give, devise and bequeath” and executed the instrument according to the law of wills, but by the terms of the instrument an estate was vested upon valuable consideration during the lifetime of the maker, the instrument was not a will. Ward v. Ward, 104 Ky. 857 , 48 S.W. 411, 20 Ky. L. Rptr. 986 , 1898 Ky. LEXIS 235 ( Ky. 1898 ).

Instrument in deceased’s own handwriting, reciting that testator had “turned over” everything that belonged to him to his sister and nephew, appointing his sister “heir and administrator,” and stating that “it is our will” that nephew purchase outstanding undivided interest in deceased’s farm in order to keep it intact, was testamentary in character, and was not void for vagueness or uncertainty, where deceased had not, in fact, delivered any of his property to his sister and nephew before his death. Moss v. Hodges, 294 Ky. 677 , 172 S.W.2d 584, 1943 Ky. LEXIS 529 ( Ky. 1943 ).

10.Deeds.

Where the instrument contains all of the ordinary elements of a deed but provides that it is to be put to record but not to take effect until the death of the grantor, the instrument is a deed and is not testamentary. Philips v. Thomas Lumber Co., 94 Ky. 445 , 22 S.W. 652 ( Ky. 1893 ). See Rawlings v. McRoberts, 95 Ky. 346 , 25 S.W. 601, 15 Ky. L. Rptr. 771 , 1894 Ky. LEXIS 32 ( Ky. 1894 ).

A writing in the form of a deed by which the party named as “party of the first part” undertook to sell specifically described lands, and provided that the conveyance was to be put to record but to take effect so as to give possession after the death of the grantor and that he desired to make a distribution to take effect upon his death is a deed and not a will as the title was to vest at once and only the distribution and possession were postponed until the grantor’s death. Rawlings v. McRoberts, 95 Ky. 346 , 25 S.W. 601, 15 Ky. L. Rptr. 771 , 1894 Ky. LEXIS 32 ( Ky. 1894 ). See Taylor v. Purdy, 151 Ky. 82 , 151 S.W. 45, 1912 Ky. LEXIS 754 ( Ky. 1912 ).

The mere fact that deeds are executed at the same time as a will does not make the deeds testamentary in character. Where will disposed of entire estate remaining after execution of deeds, and deeds conveyed fee simple title subject to life estate of testatrix, deeds were not testamentary in character. Kiefer's Ex'r & Ex'x v. Deibel, 292 Ky. 318 , 166 S.W.2d 430, 1942 Ky. LEXIS 79 ( Ky. 1942 ).

11.Partnership Agreement.

Partnership agreement, providing that upon death of either partner the survivor would be entitled to all of the assets of the partnership, and further providing for the carrying of life insurance upon each partner, payable to respective heirs, the premiums being paid out of partnership assets, was not testamentary in character and did not have to be executed in conformity with statutes relating to wills. More v. Carnes, 309 Ky. 41 , 214 S.W.2d 984, 1948 Ky. LEXIS 959 ( Ky. 1948 ).

12.Contract to Make Will.

A contract to make a will, supported by a consideration, may be enforceable. Suter v. Suter, 278 Ky. 403 , 128 S.W.2d 704, 1939 Ky. LEXIS 416 ( Ky. 1939 ).

13.Conditional Wills.

If a will is executed by the testator with the intent that it should be his will only upon the happening of certain events, it is a conditional will and will be considered the will only when the condition has happened; however, there must be a condition, not a mere inducement to the making of the will. Likefield v. Likefield, 82 Ky. 589 , 6 Ky. L. Rptr. 640 , 1885 Ky. LEXIS 23 (Ky. Ct. App. 1885).

14.Codicil.

A codicil is a part of the will, and the will dates as of the date of the last codicil added thereto. Davis' Heirs v. Taul, 36 Ky. 51 , 1837 Ky. LEXIS 138 ( Ky. 1837 ) (decided under prior law). See Armstrong v. Armstrong, 53 Ky. 333 ( Ky. 1853 ) (decided under prior law).

A codicil should be so interpreted if possible to make it harmonize with the provisions of the will. Proctor v. Duncan, 62 Ky. 318 , 1864 Ky. LEXIS 77 ( Ky. 1864 ) (decided under prior law).

15.Attempted Gift.

Where the deceased held a note and executed a writing stating that if she should not collect the amount thereof during her lifetime, her administrator or executor should surrender the note as she intended it as a gift, such an instrument was ineffectual as a gift. It was testamentary, but not having been executed according to the law of wills it must fail. Knott's Adm'r v. Hogan, 61 Ky. 99 , 1862 Ky. LEXIS 30 ( Ky. 1862 ) (decided under prior law).

Cited:

Lyons v. Brown, 352 S.W.2d 549, 1960 Ky. LEXIS 4 ( Ky. 1961 ); Gilbert v. Gilbert, 652 S.W.2d 663, 1983 Ky. App. LEXIS 293 (Ky. Ct. App. 1983).

Research References and Practice Aids

Cross-References.

Administration ceases if will is subsequently produced, KRS 395.040 .

Alien may devise property, KRS 381.290 .

Alien may hold and dispose of real property, acquired by descent or devise, for eight years, KRS 381.330 , 381.340 .

Devisee who kills testator forfeits all interest in testator’s property, KRS 381.280 .

Inheritance and estate taxes, KRS ch. 140.

Inheritance tax to be collected by executor before delivering property to devisee, KRS 140.220 .

Invalid will, legalizing by special legislation prohibited, Const., § 59, Twelfth.

Land adversely held may be devised, KRS 372.070 .

Property unclaimed by devisee for three years vests in state, KRS 393.020 .

Sale or investment of property not to conflict with provisions of will, KRS 386.060 .

Simultaneous death of testator and devisee, distribution in case of, KRS 397.1001 to 397.1009 .

“Will,” “last will,” and “issue” defined, KRS 446.010 .

Kentucky Bench & Bar.

Ratliff, Kentucky Probate — A Simple Overview, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 16.

Brown, Estate Planning for the Elder Client: Diminished Capacity, Volume 74, No. 6, November 2010, Ky. Bench & Bar 10.

Kentucky Law Journal.

Kentucky Law Survey, Bratt, Property, 73 Ky. L.J. 459 (1984-85).

394.020. Persons competent to make — What may be disposed of.

Any person of sound mind and eighteen (18) years of age or over may by will dispose of any estate, right, or interest in real or personal estate that he may be entitled to at his death, which would otherwise descend to his heirs or pass to his personal representatives, even though he becomes so entitled after the execution of his will.

History. 2147, 4825, 4827: amend. Acts 1964, ch. 21, § 4.

NOTES TO DECISIONS

1.Mental Capacity.

The test of mental capacity is a sound mind and not a “perfect sense and memory.” Occasional fits of intemperance is not sufficient evidence to show unsoundness of the mind. Case of Harper's Will, 7 Ky. 244 , 1815 Ky. LEXIS 134 ( Ky. 1815 ) (decided under prior law).

Unwarranted and intense hatred toward nearest relatives shows a lack of testamentary capacity. Johnson v. Moore's Heirs, 11 Ky. 371 , 1822 Ky. LEXIS 134 ( Ky. 1822 ) (decided under prior law).

Testamentary capacity is not that high degree of understanding and ability necessary to render a person capable of making a contract where the parties deal at arm’s length, but exists where the testator has mind and memory enough to understand that he is selecting the persons whom he wishes to have his property, and to know his property, and the natural objects of his bounty, and his duties to them and the persons upon whom his property is bestowed by the testamentary paper which he signs. Wise v. Foote, 81 Ky. 10 , 4 Ky. L. Rptr. 643 , 1883 Ky. LEXIS 20 (Ky. Ct. App. 1883). See Rasdall v. Brush, 104 S.W. 749, 31 Ky. L. Rptr. 1138 (1907); Bailey v. Bailey, 184 Ky. 455 , 212 S.W. 595, 1919 Ky. LEXIS 112 ( Ky. 1919 ).

In determining whether a person was of unsound mind at the time of making the will, each case is determinable upon its own facts. Osborn v. Paul, 272 Ky. 694 , 114 S.W.2d 1134, 1938 Ky. LEXIS 178 ( Ky. 1938 ).

One may have testamentary capacity even though he is mentally unsound. Madden v. Cornett, 290 Ky. 268 , 160 S.W.2d 607, 1942 Ky. LEXIS 372 ( Ky. 1942 ).

The will of a person partially insane is invalid if it is the direct offspring of such partial insanity. Madden v. Cornett, 290 Ky. 268 , 160 S.W.2d 607, 1942 Ky. LEXIS 372 ( Ky. 1942 ).

Mere failure of memory, momentary forgetfulness, or lack of strict coherence in conversation does not render one incapable of executing a will. Tye v. Tye, 312 Ky. 812 , 229 S.W.2d 973, 1950 Ky. LEXIS 779 ( Ky. 1950 ).

2.— Presumption.

Proof of proper execution of a will which appears rational in its provisions is ordinarily sufficient to establish a presumption of the soundness of mind of its maker and to shift the burden of going forward with the evidence to the contestants. Simpson v. Sexton, 311 S.W.2d 803, 1958 Ky. LEXIS 217 ( Ky. 1958 ).

3.— Time of Execution.

Mental capacity is to be determined as of the time at which the will was executed. Overton's Heirs v. Overton's Ex'rs, 57 Ky. 61 , 1857 Ky. LEXIS 12 ( Ky. 1857 ) (decided under prior law). See Cochran's Will, 17 Ky. (1 T.B. Mon.) 263, 17 Ky. 263 , 1824 Ky. LEXIS 211 (1824) (decided under prior law).

In order to set aside a will the evidence of mental incapacity must be reasonably related to the time of the making of the will. Baker v. Murray, 289 Ky. 733 , 160 S.W.2d 27, 1942 Ky. LEXIS 631 ( Ky. 1942 ).

Evidence of a testator’s mental status both before and after the execution of a will are admissible so long as they have a reasonable tendency to indicate his mental condition at the time of the execution of the will. Pardue v. Pardue, 312 Ky. 370 , 227 S.W.2d 403, 1950 Ky. LEXIS 640 ( Ky. 1950 ).

4.— Degree of Capacity.

A less degree of mental power may suffice for a simple will than is needed for a complicated will. Madden v. Cornett, 290 Ky. 268 , 160 S.W.2d 607, 1942 Ky. LEXIS 372 ( Ky. 1942 ).

It does not require the same degree or extent of capacity to enable one to make his will as it does to make a contract inter partes. Moore v. Moore, 290 Ky. 715 , 162 S.W.2d 547, 1942 Ky. LEXIS 484 ( Ky. 1942 ).

Persons distinctly subnormal or abnormal mentally may be competent to make wills. Perkins' Guardian v. Bell, 294 Ky. 767 , 172 S.W.2d 617, 1943 Ky. LEXIS 533 ( Ky. 1943 ).

Greater mental capacity is required to make a conveyance than to make a will unless it is a gift or is testamentary in character. Gay v. Gay, 308 Ky. 545 , 215 S.W.2d 96, 1948 Ky. LEXIS 976 ( Ky. 1948 ).

The mental capacity to make a will is not as high as that required to make a deed or contract, because there is no element of competition in a will. Middleton v. Middleton's Ex'r, 302 S.W.2d 588, 1956 Ky. LEXIS 9 ( Ky. 1956 ).

5.— Natural Distribution of Property.

Where the testator died with an estate valued at $60,000, of which he gave one-twelfth to his son, and the remainder to his third wife, whom he had married only a month before the will was executed and only a few months before his death, it is not an unnatural, unreasonable, and unjust disposition of the testator’s estate so as to afford some evidence of testator’s incapacity. Mossbarger v. Mossbarger's Adm'x, 230 Ky. 230 , 18 S.W.2d 997, 1929 Ky. LEXIS 58 ( Ky. 1929 ).

If the will is reasonable, just and natural, it tends to establish capacity in the testator, and that it was voluntarily made. Berryman v. Sidwell, 278 Ky. 713 , 129 S.W.2d 154, 1939 Ky. LEXIS 479 ( Ky. 1939 ).

An appreciation of the obligation to those whom nature makes the object of one’s bounty is a component of the test for determining not only mental capacity but freedom of will. Gay v. Gay, 308 Ky. 539 , 215 S.W.2d 92, 1948 Ky. LEXIS 975 ( Ky. 1948 ).

A will making just distribution of an estate will be held per se strong evidence of testamentary capacity, while one turning testator’s property into an unnatural channel gives at least some presumption to the contrary. Gay v. Gay, 308 Ky. 539 , 215 S.W.2d 92, 1948 Ky. LEXIS 975 ( Ky. 1948 ).

6.— Unnatural Distribution of Property.

An unequal distribution of property is not, of itself, proof of mental incapacity. Bottom v. Bottom, 106 S.W. 216, 32 Ky. L. Rptr. 494 (1907).

Where the provisions of a will are irrational and unnatural, these provisions may be considered by the jury along with other evidence in the determination of the question of mental incapacity on the part of the testator. Mullins v. Mullins, 229 Ky. 103 , 16 S.W.2d 788, 1929 Ky. LEXIS 704 ( Ky. 1929 ).

Evidence that plans made by testator for disposition of his property were highly impracticable was competent on question of mental capacity. Berryman v. Sidwell, 278 Ky. 713 , 129 S.W.2d 154, 1939 Ky. LEXIS 479 ( Ky. 1939 ).

The unnatural character of a disposition is admissible as evidence on the question of competency to make a will. Martine v. Roadcap, 281 Ky. 389 , 136 S.W.2d 16, 1940 Ky. LEXIS 35 ( Ky. 1940 ).

Mere fact that testator left nothing to one group of heirs was not sufficient to establish lack of mental capacity. Perkins' Guardian v. Bell, 294 Ky. 767 , 172 S.W.2d 617, 1943 Ky. LEXIS 533 ( Ky. 1943 ).

Where will is unnatural in its provisions and inconsistent with obligations of testator to different members of his family, burden rests upon propounder to give some reasonable explanation of its unnatural character, however, the absence of a reasonable explanation of such unnatural provisions does not entitle contestants to peremptory instruction. Allen v. Henderson, 299 Ky. 92 , 184 S.W.2d 885, 1945 Ky. LEXIS 385 ( Ky. 1945 ).

Inequality in the distribution of an estate by will is not in itself evidence of mental incapacity. Gerard v. Gerard, 350 S.W.2d 719, 1961 Ky. LEXIS 132 ( Ky. 1961 ).

7.— Medical Testimony.

In an attempt to prove lack of mental capacity, testimony of two doctors that testator did not have sufficient capacity immediately prior to his death more than a week after the will was executed and that from hospital records of the decedent it was doubtful that he had such capacity at the time the will was executed amounted to no more than a scintilla of evidence which was not sufficient to take the question to the jury in the face of testimony by decedent’s attending physician that at the time of execution testator had sufficient capacity. Bennett v. Kissinger, 313 Ky. 417 , 231 S.W.2d 74, 1950 Ky. LEXIS 887 ( Ky. 1950 ).

The opinion of a psychiatrist in response to a hypothetical question which distorted some of the proven facts, omitted others, and contained a conclusion concerning the issue in question had no probative value to establish the testator’s lack of competence. Gerard v. Gerard, 350 S.W.2d 719, 1961 Ky. LEXIS 132 ( Ky. 1961 ).

8.— Opinion Testimony.

In a will contest on the ground of lack of testamentary capacity, nonexpert opinions not supported by facts or circumstances which themselves tend to establish the testator’s lack of mental capacity to execute his will are insufficient to authorize the submission of the case to the jury or to sustain its verdict against the will. Godman v. Aulick, 261 Ky. 268 , 87 S.W.2d 612, 1935 Ky. LEXIS 641 ( Ky. 1935 ).

Lay testimony that testator was mentally unsound for all purposes is incompetent in will contest case. It should be confined to the issue of testamentary capacity. Madden v. Cornett, 290 Ky. 268 , 160 S.W.2d 607, 1942 Ky. LEXIS 372 ( Ky. 1942 ).

Opinions of contestant’s witnesses that testator lacked testamentary capacity were not sufficient to justify refusing probate of will where opinions were based solely on witnesses’ belief that terms of will were unfair and unjust. Perkins' Guardian v. Bell, 294 Ky. 767 , 172 S.W.2d 617, 1943 Ky. LEXIS 533 ( Ky. 1943 ).

Opinions of nonexpert witnesses that a testator was of unsound mind possess no more probative value than the facts upon which they are founded. Perkins' Guardian v. Bell, 294 Ky. 767 , 172 S.W.2d 617, 1943 Ky. LEXIS 533 ( Ky. 1943 ).

Members of the family and the household neighbors of the testatrix are competent to testify about normal speech, acts, and conduct of the testatrix, and to express their opinion based on this personal knowledge. Hines v. Price, 310 Ky. 758 , 221 S.W.2d 673, 1949 Ky. LEXIS 1008 ( Ky. 1949 ).

Testimony of testator’s wife, children and members of their families as to what they observed concerning testator’s mental and physical condition was not incompetent under KRS 421.210 (repealed) in an action to set aside a will on the grounds of mental incapacity and undue influence. Pardue v. Pardue, 312 Ky. 370 , 227 S.W.2d 403, 1950 Ky. LEXIS 640 ( Ky. 1950 ).

Opinions of lay witnesses that the testator lacked mental capacity are competent evidence, but, unless they are based upon facts which tend to establish such lack of capacity, they are not sufficient to take the question to the jury. Tye v. Tye, 312 Ky. 812 , 229 S.W.2d 973, 1950 Ky. LEXIS 779 ( Ky. 1950 ).

In action involving the competency of the testator, direct, positive opinion testimony of witnesses based on knowledge gained from long acquaintance with and observation of the testator was competent although there was no showing of the specific facts upon which these opinions were based. McKinney v. Montgomery, 248 S.W.2d 719, 1952 Ky. LEXIS 756 ( Ky. 1952 ).

9.— Insane Delusions.

Insane delusions based upon spiritualism and religion may be shown to establish a lack of mental capacity. Davis' Ex'r v. Laughlin, 280 Ky. 422 , 133 S.W.2d 544, 1939 Ky. LEXIS 140 ( Ky. 1939 ).

Where there was evidence that testatrix was under a delusion that her husband was associating with other women, it was proper to instruct the jury that if testatrix was insane on this point they should find against her will, which left nothing to the husband. Smith v. Ridner, 293 Ky. 66 , 168 S.W.2d 559, 1943 Ky. LEXIS 571 ( Ky. 1943 ).

The fact that a relative is disinherited because of testator’s prejudice against him does not establish lack of testamentary capacity if the prejudice does not amount to an insane delusion. Perkins' Guardian v. Bell, 294 Ky. 767 , 172 S.W.2d 617, 1943 Ky. LEXIS 533 ( Ky. 1943 ).

Where there was some evidence tending to indicate that the testator was suffering from an insane delusion that his daughter did not exist, the question could not be submitted to the jury in view of the fact that the testator provided for the daughter in his will. Gerard v. Gerard, 350 S.W.2d 719, 1961 Ky. LEXIS 132 ( Ky. 1961 ).

10.— Sufficient Capacity.

The testatrix was known as “Betty Bailey” and transacted her business under that name. She signed her will “Betty Elizabeth Bailey,” after making inquiry from those present as regards her correct name and how to spell it. This was not to be sufficient evidence to show mental incapacity to make the will. Bailey v. Bailey, 184 Ky. 455 , 212 S.W. 595, 1919 Ky. LEXIS 112 ( Ky. 1919 ).

Eccentricities amounting to no more than slight peculiarities do not establish lack of testamentary capacity. Perkins' Guardian v. Bell, 294 Ky. 767 , 172 S.W.2d 617, 1943 Ky. LEXIS 533 ( Ky. 1943 ).

Mere proof that testator was vain, fractious, short tempered and nervous was not sufficient to establish lack of testamentary capacity. Perkins' Guardian v. Bell, 294 Ky. 767 , 172 S.W.2d 617, 1943 Ky. LEXIS 533 ( Ky. 1943 ).

The fact that chief beneficiary of will was a college no longer in active operation did not show lack of testamentary capacity, where amount of bequest together with other assets of college might be sufficient to permit college to resume operations. Perkins' Guardian v. Bell, 294 Ky. 767 , 172 S.W.2d 617, 1943 Ky. LEXIS 533 ( Ky. 1943 ).

Where two physicians and several lay witnesses testified that testator did not have mental capacity, and one physician and a number of lay witnesses testified that he did have mental capacity, and the will being attacked was similar to one which testator had drafted many years before his death when his mental capacity was admitted to be good, the evidence was sufficient to sustain a verdict upholding the will, notwithstanding that physician who testified for contestants had visited testator more often and made more thorough examinations than physician who testified for proponents. Allen v. Henderson, 299 Ky. 92 , 184 S.W.2d 885, 1945 Ky. LEXIS 385 ( Ky. 1945 ).

Although the testator was old and sick at the time he executed his will, testimony that he carried on his business capably and had sufficient capacity to know the objects of his bounty by several people, including his banker, his attorney, and his doctor, was sufficient to sustain the jury verdict that he had sufficient capacity to execute the will. Warnick v. Childers, 282 S.W.2d 608, 1955 Ky. LEXIS 250 ( Ky. 1955 ).

Where decedent’s doctor testified that his memory and judgment were poor, his children and other interested witnesses testified that he failed to recognize them on occasions and that he suffered from hallucinations, other disinterested witnesses testified that the decedent had sufficient capacity, and it appeared that the decedent had turned to his former wife for care when he was unable to obtain care from his children, the trial court erred in refusing to probate the will which gave his property to his former wife. Middleton v. Middleton's Ex'r, 302 S.W.2d 588, 1956 Ky. LEXIS 9 ( Ky. 1956 ).

Evidence of a few isolated acts during a period of 50 years indicating peculiarities and eccentricities of testator fell short of establishing the lack of mental capacity to make a will. Gerard v. Gerard, 350 S.W.2d 719, 1961 Ky. LEXIS 132 ( Ky. 1961 ).

11.— Insufficient Capacity.

Where one was an invalid for many years and could not talk and her intentions and desires were arrived at by asking her questions to which she could only respond “yes” or “no,” it was held that she did have sufficient mental capacity to make a valid will. Mendenhall v. Tungate, 95 Ky. 208 , 24 S.W. 431, 15 Ky. L. Rptr. 639 , 1893 Ky. LEXIS 144 ( Ky. 1893 ).

Evidence of testator’s abnormal acts of cruelty and other unusual conduct held to support verdict finding testator incompetent to make will. Pfuelb v. Pfuelb, 275 Ky. 588 , 122 S.W.2d 128, 1938 Ky. LEXIS 465 ( Ky. 1938 ).

Evidence that testatrix was addicted to use of morphine, that principal devisee was in a position to furnish morphine to her, and that testatrix was of unsound mind was sufficient to support verdict finding undue influence and lack of mental capacity. Franks' Ex'r v. Bates, 278 Ky. 337 , 128 S.W.2d 739, 1939 Ky. LEXIS 428 ( Ky. 1939 ).

12.— Jury Issue.

The issue of testamentary capacity is for the jury. Madden v. Cornett, 290 Ky. 268 , 160 S.W.2d 607, 1942 Ky. LEXIS 372 ( Ky. 1942 ). See Moore v. Moore, 290 Ky. 715 , 162 S.W.2d 547, 1942 Ky. LEXIS 484 ( Ky. 1942 ).

Where there is gross inequality in the disposition of an estate among the natural objects of testator’s bounty or the will is unnatural, such facts, when unexplained and corroborated by even slight evidence of want of testamentary capacity or undue influence, are sufficient to take the case to the jury. Pardue v. Pardue, 312 Ky. 370 , 227 S.W.2d 403, 1950 Ky. LEXIS 640 ( Ky. 1950 ).

13.— Degree of Proof.

If a will is attacked on ground of lack of mental capacity alone, the evidence must be more convincing than when undue influence is also charged. Berryman v. Sidwell, 278 Ky. 713 , 129 S.W.2d 154, 1939 Ky. LEXIS 479 ( Ky. 1939 ).

14.Undue Influence.

In determining issue of undue influence, jury may consider mental incapacity, age and physical condition of testator, confidential relations between testator and beneficiary, active participation by beneficiary or agent in preparation of will, and result accomplished. Berryman v. Sidwell, 278 Ky. 713 , 129 S.W.2d 154, 1939 Ky. LEXIS 479 ( Ky. 1939 ).

In determining the issue of undue influence the jury may take into consideration the testator’s age and evidence of physical weakness and enfeeblement likely to impair his mind and powers of resistance. Hines v. Price, 310 Ky. 758 , 221 S.W.2d 673, 1949 Ky. LEXIS 1008 ( Ky. 1949 ).

Court of Appeals erred in its conclusion that expert offered an opinion on the ultimate fact regarding undue influence in a will contest case so as to invade the province of the jury. Expert/attorney did not provide any improper opinion or invade province of the jury by informing the jury about the duties of an attorney to be careful of the badges of undue influence. Noncontesting party had opened the door to the testimony about the badges of undue influence by seeking such testimony from his own expert. Kesler v. Shehan, 934 S.W.2d 254, 1996 Ky. LEXIS 123 ( Ky. 1996 ).

15.— Nature of Influence.

To set aside a will for undue influence there must be proof of such influence, such as evidence of activity, overt acts, or incriminating statements of the person concerned or of conditions or statements of the testator himself which tend to show that he had been wrongfully influenced or imposed upon to do what he would otherwise not have done in the exercise of his free will. Palmer v. Richardson, 311 Ky. 190 , 223 S.W.2d 745, 1949 Ky. LEXIS 1093 ( Ky. 1949 ).

Where invalidation of a will due to undue influence is asserted it must be found that the influence was of such a nature as to destroy the testator’s free will and induce him to do what he would otherwise not have done and this influence must have directly affected the provisions of the will. Jackson v. Feldhaus, 313 Ky. 552 , 233 S.W.2d 109, 1950 Ky. LEXIS 934 ( Ky. 1950 ).

The power or force imposed must be of such a nature as to destroy the free agency of the maker of the will in order to constitute undue influence. Mayhew v. Mayhew, 329 S.W.2d 72, 1959 Ky. LEXIS 145 ( Ky. 1959 ).

16.— Time of Influence.

Acts constituting undue influence must occur at or prior to the execution of the will and must be operative at the time of its execution. Mayhew v. Mayhew, 329 S.W.2d 72, 1959 Ky. LEXIS 145 ( Ky. 1959 ).

17.— Source of Influence.

Undue influence need not be exercised by beneficiary directly, but may be through agency, by a third person, or by one desiring to keep another from inheriting. Berryman v. Sidwell, 278 Ky. 713 , 129 S.W.2d 154, 1939 Ky. LEXIS 479 ( Ky. 1939 ).

Effort by an agent of the beneficiary which produces a will may constitute undue influence. McKinney v. Montgomery, 248 S.W.2d 719, 1952 Ky. LEXIS 756 ( Ky. 1952 ).

18.— Confidential Relationship.

The mere existence of confidential relations between the testator and a beneficiary does not raise a presumption that he exercised undue influence over the testator and thereupon place upon him the burden of disproving it. Palmer v. Richardson, 311 Ky. 190 , 223 S.W.2d 745, 1949 Ky. LEXIS 1093 ( Ky. 1949 ).

19.— Actually Exercised.

Mere opportunity to exercise undue influence, or that there was a possibility that it was exercised, is not sufficient to invalidate a will. There must be some evidence that undue influence was actually exercised in order to invalidate the will. Bailey v. Bailey, 184 Ky. 455 , 212 S.W. 595, 1919 Ky. LEXIS 112 ( Ky. 1919 ).

When testator is shown to be mentally competent to dispose of his property and nothing more is shown than that the beneficiaries had a mere opportunity to exercise influence, such influence will not be presumed because of age or physical infirmity, but it must appear that influence was actually exercised. Smith v. Gilligan's Adm'r, 276 Ky. 533 , 124 S.W.2d 798, 1939 Ky. LEXIS 558 ( Ky. 1939 ).

In order to establish the existence of undue influence evidence must be introduced to show that such influence was actually exercised. Kiefer's Ex'r & Ex'x v. Deibel, 292 Ky. 318 , 166 S.W.2d 430, 1942 Ky. LEXIS 79 ( Ky. 1942 ).

In order to prove undue influence there must be substantial evidence that such influence was actually exercised. Hurley v. Blankinship, 313 Ky. 49 , 229 S.W.2d 963, 1950 Ky. LEXIS 773 ( Ky. 1950 ).

In order to set aside a will for undue influence, there must be substantial evidence of the exercise of such influence; mere opportunity for the exercise of such influence is insufficient. Bennett v. Kissinger, 313 Ky. 417 , 231 S.W.2d 74, 1950 Ky. LEXIS 887 ( Ky. 1950 ).

20.— Unnatural Disposition of Property.

Apparent unreasonableness and unfairness of a disposition, including the disinheritance of a child, does not per se sufficiently prove that it was made through undue influence. Palmer v. Richardson, 311 Ky. 190 , 223 S.W.2d 745, 1949 Ky. LEXIS 1093 ( Ky. 1949 ).

Only where a will is grossly unfair and inconsistent with a person’s expected dispositions to his immediate family will there be an effect on the question of undue influence. Palmer v. Richardson, 311 Ky. 190 , 223 S.W.2d 745, 1949 Ky. LEXIS 1093 ( Ky. 1949 ).

Where a niece who was the testatrix’s nearest relative, was quite close to the testatrix for many years, had furnished care for the testatrix, had advanced money to the testatrix, and the testatrix had often said would receive all of her property was virtually omitted from the testatrix’s will in favor of a second cousin, who had paid no attention to the testatrix until the last two years of the testatrix’s life, the rule that where there is an unreasonable or unnatural disposition of a testator’s property without explanation, only slight evidence is required to take the question of undue influence to the jury was properly applied, although the rule is usually restricted to cases in which the testator’s children or other immediate natural objects of his bounty are grossly discriminated against. Marcum v. Gallup, 237 S.W.2d 862, 1951 Ky. LEXIS 787 ( Ky. 1951 ).

Where a niece of the decedent cared for him during his last months and his other nieces and nephews had opposed him in a prior lawsuit, leaving most of his property to the one niece was not an unnatural disposition which would be indicative of undue influence. Warnick v. Childers, 282 S.W.2d 608, 1955 Ky. LEXIS 250 ( Ky. 1955 ).

Where testator’s deceased wife made life-long contributions to the accumulation of his estate it was imperceptible that her children would be turned away empty-handed upon testator’s death, and where the jury was presented with a scenario in which the entire relationship between testator and his second wife, to whom he left his entire estate, from courtship to death, was of a scant three months’ duration, there was substantial evidence to support a verdict that testator’s second wife exercised undue influence and that testator lacked the requisite testamentary capacity with regard to the execution of the will in question. Burke v. Burke, 801 S.W.2d 691, 1990 Ky. App. LEXIS 140 (Ky. Ct. App. 1990).

21.— Method of Proof.

Undue influence on testator may be proved by circumstances where there is no direct influence. Allen v. Henderson, 299 Ky. 92 , 184 S.W.2d 885, 1945 Ky. LEXIS 385 ( Ky. 1945 ).

Undue influence in the execution of a will, as other species of fraud, may be proved by a chain of circumstances. Marcum v. Gallup, 237 S.W.2d 862, 1951 Ky. LEXIS 787 ( Ky. 1951 ).

Facts and circumstances leading to the execution of a will may be relied upon to establish the exercise of undue influence. McKinney v. Montgomery, 248 S.W.2d 719, 1952 Ky. LEXIS 756 ( Ky. 1952 ).

22.— Degree of Proof.

Where both undue influence and mental incapacity are relied upon, the contestant’s proof is not required to be as convincing a where mental incapacity alone is charged. Hines v. Price, 310 Ky. 758 , 221 S.W.2d 673, 1949 Ky. LEXIS 1008 ( Ky. 1949 ).

Where both undue influence and lack of capacity are alleged in the execution of a will, less proof is required than where lack of capacity alone is asserted. Waggener v. General Asso. of Baptists, 306 S.W.2d 271, 1957 Ky. LEXIS 31 ( Ky. 1957 ).

23.— Burden of Proof.

An unequal distribution under a will is not sufficient to shift the burden of proof to proponents of the will under a presumption of undue influence as such unequal distribution is only slight evidence of undue influence. Kiefer's Ex'r & Ex'x v. Deibel, 292 Ky. 318 , 166 S.W.2d 430, 1942 Ky. LEXIS 79 ( Ky. 1942 ).

Contestants of a will have the burden of proving undue influence and the burden of disproving this does not shift to the proponents merely because evidence was produced to show that the testatrix was old and infirm and enjoyed a close relationship with the beneficiaries of the will. Kiefer's Ex'r & Ex'x v. Deibel, 292 Ky. 318 , 166 S.W.2d 430, 1942 Ky. LEXIS 79 ( Ky. 1942 ).

24.— Jury Issue.

If the will is unnatural in its provisions, propounder has burden of explaining its unnatural character, and slight circumstances are sufficient to take question of undue influence to jury. Berryman v. Sidwell, 278 Ky. 713 , 129 S.W.2d 154, 1939 Ky. LEXIS 479 ( Ky. 1939 ).

Undue influence can seldom be proved directly; it ordinarily must be proved by circumstances, and most often is a question for the jury, who have an opportunity to observe the witnesses. Berryman v. Sidwell, 278 Ky. 713 , 129 S.W.2d 154, 1939 Ky. LEXIS 479 ( Ky. 1939 ).

Where there is a charge of undue influence only slight evidence as to such influence will take the question to the jury. Smith v. Ridner, 293 Ky. 66 , 168 S.W.2d 559, 1943 Ky. LEXIS 571 ( Ky. 1943 ).

Evidence that the husband of the principal beneficiary procured the scrivener to write the will in question, that members of the family of testatrix were not allowed alone with her, and that senility had begun to set in on testatrix was sufficient to take the questions of incompetency and undue influence to the jury. Hines v. Price, 310 Ky. 758 , 221 S.W.2d 673, 1949 Ky. LEXIS 1008 ( Ky. 1949 ).

Slight evidence of undue influence is sufficient to take the question to the jury. Hines v. Price, 310 Ky. 758 , 221 S.W.2d 673, 1949 Ky. LEXIS 1008 ( Ky. 1949 ).

Where the provisions of a will are unnatural in nature, there is no explanation for such provisions and there is some slight evidence of influence the jury should be allowed to determine the question of undue influence. McKinney v. Montgomery, 248 S.W.2d 719, 1952 Ky. LEXIS 756 ( Ky. 1952 ).

25.— Insufficient Evidence for Jury.

Where there was no more than opportunity for the exertion of undue influence and the disposition of the testator’s property was not unnatural, the court properly refused to submit the issue of undue influence to the jury. Warnick v. Childers, 282 S.W.2d 608, 1955 Ky. LEXIS 250 ( Ky. 1955 ).

Where there is at most slight evidence of undue influence and no evidence of mental incapacity in the execution of a will and the disposition of the will is not unnatural, the trial court erred in submitting the issue of undue influence to the jury. See v. See, 293 S.W.2d 225, 1956 Ky. LEXIS 58 ( Ky. 1956 ).

Opportunity for the exercise of undue influence is not enough alone to submit the question to the jury. Waggener v. General Asso. of Baptists, 306 S.W.2d 271, 1957 Ky. LEXIS 31 ( Ky. 1957 ).

26.Right to Dispose of Property.

A testator who is of sound mind and not under undue influence may dispose of his property as he wishes. He may disinherit his children if he so desires. Zimlich v. Zimlich, 90 Ky. 657 , 14 S.W. 837, 12 Ky. L. Rptr. 589 , 1890 Ky. LEXIS 141 ( Ky. 1890 ). See Hoerth v. Zable, 92 Ky. 202 , 17 S.W. 360, 13 Ky. L. Rptr. 470 , 1891 Ky. LEXIS 140 ( Ky. 1891 ).

A testator may pauperize even his helpless dependents, if at the time he does it he is mentally sound, knows his estate and its nature and value, and of his own free will makes the disposition. Martine v. Roadcap, 281 Ky. 389 , 136 S.W.2d 16, 1940 Ky. LEXIS 35 ( Ky. 1940 ).

The right to make a will is a statutory right the purpose of which was to allow a competent person to dispose of his property as he wished rather than only in the manner prescribed by the statutes of descent. Howe v. Howe's Ex'x, 287 Ky. 756 , 155 S.W.2d 196, 1941 Ky. LEXIS 633 ( Ky. 1941 ).

The owner of property, if of sound and disposing mind, may transmit his property in such manner as pleases him. Perkins' Guardian v. Bell, 294 Ky. 767 , 172 S.W.2d 617, 1943 Ky. LEXIS 533 ( Ky. 1943 ).

The law does not avoid a will because it is not in accord with what persons other than the testator deem to be a just disposition of the property. Palmer v. Richardson, 311 Ky. 190 , 223 S.W.2d 745, 1949 Ky. LEXIS 1093 ( Ky. 1949 ).

One has the right to dispose of his property as he pleases even though the distribution is contrary to the dictates of natural or moral obligations. Palmer v. Richardson, 311 Ky. 190 , 223 S.W.2d 745, 1949 Ky. LEXIS 1093 ( Ky. 1949 ).

Age or senility alone does not deprive a person of the right to devise his property to suit his fancy. Middleton v. Middleton's Ex'r, 302 S.W.2d 588, 1956 Ky. LEXIS 9 ( Ky. 1956 ).

The law extends to each citizen the valuable privilege of disposing of his property at death as he sees fit, and the courts jealously guard his right. Gerard v. Gerard, 350 S.W.2d 719, 1961 Ky. LEXIS 132 ( Ky. 1961 ).

A mother of a handicapped child had failed to obtain legal authority to fund and manage a trust, which was funded by a settlement received from those allegedly responsible for the child’s condition, as she was not appointed by the District Court, did not obtain approval of the trust, failed to file settlements or accountings, and administered the trust with no court supervision and control; nevertheless, her ex-husband was not entitled to half of the trust funds upon the child’s death under the laws of descent and devise because his parental rights had been previously terminated. Scott v. Montgomery Traders Bank & Trust Co., 956 S.W.2d 902, 1997 Ky. LEXIS 162 ( Ky. 1997 ).

27.Married Women.

Married woman has the same power to make a will as any other person. Bains v. Globe Bank & Trust Co., 136 Ky. 332 , 124 S.W. 343, 1910 Ky. LEXIS 488 ( Ky. 1910 ).

The will of a married woman is governed by the law in force at the time it was executed. Harlan v. Harlan, 144 Ky. 817 , 139 S.W. 1063, 1911 Ky. LEXIS 736 ( Ky. 1911 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Brown, Estate Planning for the Elder Client: Diminished Capacity, Volume 74, No. 6, November 2010, Ky. Bench & Bar 10.

Kentucky Law Journal.

Comments, The Uniform Disposition of Community Property Rights at Death Act, 65 Ky. L.J. 541 (1976-77).

Treatises

Treatises

Petrilli, Kentucky Family Law, Status of Wife, § 11.2.

394.030. Minor can make will, when.

No person under eighteen (18) years of age can make any will, except in pursuance of a power specially given to that effect, and except also, that a parent, though under eighteen (18) years of age, may by will appoint a guardian for his child.

History. 4826: amend. Acts 1964, ch. 21, § 5; 1974, ch. 386, § 86.

NOTES TO DECISIONS

1.Construction.
2.— Power Specially Given to That Effect.

The exception in this section, concerning a “power specially given to that effect” has reference to a power of appointment, to direct the disposition of property of another, and it does not embrace the right of a minor to dispose of his own property. Owens v. Owens, 305 Ky. 460 , 204 S.W.2d 580, 1947 Ky. LEXIS 835 ( Ky. 1947 ).

Even if insurance policy specifically gave to insured the right to change beneficiary by will, such right would not constitute a “power specially given to that effect” within the meaning of this section, such as to authorize a minor insured to change beneficiary by will. Owens v. Owens, 305 Ky. 460 , 204 S.W.2d 580, 1947 Ky. LEXIS 835 ( Ky. 1947 ).

3.Federal War Death Benefit.

Minor soldier could not, by will, designate beneficiary of federal war death benefit, in absence of showing that laws as to death benefit were such as to make applicable the exception in this section. Owens v. Owens, 305 Ky. 460 , 204 S.W.2d 580, 1947 Ky. LEXIS 835 ( Ky. 1947 ).

4.Group Life Insurance.

The attempt of a minor to dispose of the proceeds of a group life insurance policy by will is invalid. Metropolitan Life Ins. Co. v. Brown's Adm'r, 222 Ky. 211 , 300 S.W. 599, 1927 Ky. LEXIS 894 ( Ky. 1927 ).

Research References and Practice Aids

Cross-References.

Guardian, appointment by will, KRS 387.040 .

Kentucky Bench & Bar.

Wiederstein, Guardianship for Disabled Persons: A Practical Guide, Vol. 70, No. 1, January 2006, Ky. Bench & Bar 18.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context Parent and Child, § 256.00.

394.035. Uniform disclaimer of transfers under nontestamentary instruments.

  1. A person, or the representative of an incapacitated person or protected person, who is a grantee, donee, surviving joint tenant, person succeeding to a disclaimed interest, beneficiary under a nontestamentary instrument or contract, or appointee under a power of appointment exercised by a nontestamentary instrument, may disclaim in whole or in part the right of transfer to him of any property, or interest therein by delivering or filing a written disclaimer under this section. A surviving joint tenant may disclaim as a separate interest any property or interest therein devolving to him by right of survivorship. A surviving joint tenant may disclaim the entire interest in any property, or interest therein, that is the subject of a joint tenancy devolving to him, if the joint tenancy was created by act of a deceased joint tenant, if the survivor did not join in creating the joint tenancy and he has not accepted a benefit thereunder. The right to disclaim shall survive the death of the person having it and may be exercised by the personal representative of such person’s estate. The disclaimer shall describe the property or interest therein disclaimed, declare the disclaimer and extent thereof, and be signed by the disclaimant.
    1. An instrument disclaiming a present interest shall be delivered or filed no later than nine (9) months after the effective date of the nontestamentary instrument or contract; and a future interest shall be delivered or filed not later than nine (9) months after the event determining that the taker of the property or interest is finally ascertained and his interest is indefeasibly vested. If the person entitled to disclaim does not have actual knowledge of the existence of the interest the instrument shall be delivered or filed not later than nine (9) months after he has actual knowledge of the existence of the interest. The effective date of a revocable instrument or contract is the date on which the maker no longer has power to revoke it or to transfer to himself or another the entire legal and equitable ownership of the interest.
    2. The disclaimer or a copy thereof shall be delivered in person or mailed by registered or certified mail to the transferor or his representative or to the trustee or other person having legal title to, or possession of, the property or interest disclaimed. If real property or an interest therein is disclaimed, a copy of the instrument may be filed for record in the office of the county clerk of the county in which the real estate is situated.
  2. Unless the nontestamentary instrument or contract provides for another disposition, the property or interest therein disclaimed shall devolve as if the disclaimant had died before the effective date of the instrument or contract. A disclaimer relates back for all purposes to that date. A future interest that takes effect in possession or enjoyment at or after the termination of the disclaimed interest takes effect as if the disclaimant had died before the effective date of the instrument or contract that transferred the disclaimed interest.
    1. The right to disclaim property or an interest therein is barred by an assignment, conveyance, encumbrance, pledge, or transfer of the property or interest, or a contract therefor, a written waiver of the right to disclaim, an acceptance of the property or interest or benefit thereunder, or a sale of the property or interest under judicial sale made before the disclaimer is effected.
    2. The right to disclaim exists notwithstanding any limitation on the interest of the disclaimant in the nature of a spendthrift provision or similar restriction.
    3. The instrument of disclaimer or the written waiver of the right to disclaim is binding upon the disclaimant or person waiving and all persons claiming through or under him.
  3. This section does not abridge the right of a person to waive, release, disclaim, or renounce property or an interest therein under any other statute.
  4. An interest in property existing on July 15, 1980, as to which, if a present interest, the time for filing a disclaimer under this section has not expired, or if a future interest, the interest has not become indefeasibly vested or the taker finally ascertained, may be disclaimed within nine (9) months after July 15, 1980.
  5. This section shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this section among states enacting it.
  6. This section may be cited as the uniform disclaimer of transfers under nontestamentary instruments section.

History. Enact. Acts 1980, ch. 259, § 10, effective July 15, 1980.

Research References and Practice Aids

Kentucky Bench & Bar.

Bozell, Disclaimer Trusts: A Flexible Choice for Many Couples in the Face of an Uncertain Future for the Estate Tax, Vol. 70, No. 1, January 2006, Ky. Bench & Bar 7.

Kentucky Law Journal.

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

394.040. Requisites of a valid will.

No will is valid unless it is in writing with the name of the testator subscribed thereto by himself, or by some other person in his presence and by his direction. If the will is not wholly written by the testator, the subscription shall be made or the will acknowledged by him in the presence of at least two (2) credible witnesses, who shall subscribe the will with their names in the presence of the testator, and in the presence of each other.

History. 4828: amend. Acts 1978, ch. 85, § 1, effective June 17, 1978.

NOTES TO DECISIONS

1.Power to Dispose of Property.

The legislature has the power to impose technical requirements for the execution of wills, because the power to dispose of one’s property is purely statutory. Miller's Ex'r v. Shannon, 299 S.W.2d 103, 1957 Ky. LEXIS 389 ( Ky. 1957 ).

2.Verbal Agreement.

A “verbal agreement” referred to in testatrix’ will could not operate as a will even if it were known, because wills must be in writing, except in instances of nuncupative wills which are effective only as to personal property. Haysley v. Rogers, 255 S.W.2d 649, 1952 Ky. LEXIS 1146 ( Ky. 1952 ).

3.Valid Will.

If the testator cannot read and write, it is not necessary that the will be read to him in order to make a valid will. Shanks v. Christopher, 10 Ky. 144 , 1820 Ky. LEXIS 203 ( Ky. 1820 ) (decided under prior law).

Two sheets of paper, the second of which contained only the attestation clause and signatures of the testator and the witnesses, should be admitted to probate as the will of the testator where proper identification is made by the witnesses. Cole v. Webb, 220 Ky. 817 , 295 S.W. 1035, 1927 Ky. LEXIS 620 ( Ky. 1927 ).

Where testimony showed that testator made his mark in the presence of the witnesses, that the draftsman of the will told witnesses in presence of testator it was his will, and witnesses attested will in presence of testator, the requirements of this section were satisfied. Rybolt v. Futrell, 296 Ky. 158 , 176 S.W.2d 269, 1943 Ky. LEXIS 121 ( Ky. 1943 ).

Evidence sustained validity of will, where will was holographic, unambiguous, made a natural disposition of testator’s property, and was in proper order, except for a broken sentence, just before pasted slip carrying testator’s signature, which failed to affect material parts of will, and where jury found against contention that broken sentence indicated part of former will had been pasted on propounded will. Bennett v. Bennett's Ex'x, 303 Ky. 565 , 198 S.W.2d 301, 1946 Ky. LEXIS 899 ( Ky. 1946 ).

Under this section a will to be valid must have the name of the testator subscribed thereto and must be either, (1) acknowledged in the presence of, and subscribed by two credible witnesses, or (2) wholly written by the testator. Scott v. Gastright, 305 Ky. 340 , 204 S.W.2d 367, 1947 Ky. LEXIS 818 ( Ky. 1947 ).

Where neither of two instruments sought to be probated as a will were acknowledged before or signed by subscribing witnesses and the two were not wholly written by deceased, the requirements of this section were not met. Scott v. Gastright, 305 Ky. 340 , 204 S.W.2d 367, 1947 Ky. LEXIS 818 ( Ky. 1947 ).

Where testator did not read a will before signing it, but stated that he knew its contents and his signature was properly witnessed, the will was valid. Taliaferro v. King, 279 S.W.2d 793, 1955 Ky. LEXIS 543 ( Ky. 1955 ).

Where the technical requirements for execution of wills have been substantially complied with, the will should be probated. Miller's Ex'r v. Shannon, 299 S.W.2d 103, 1957 Ky. LEXIS 389 ( Ky. 1957 ).

An instrument intended as a will, signed by the testator and two witnesses, and containing the names of persons followed by specifications of property owned by the testator at the time of its execution was sufficient in form and substance as a will. Hopson v. Ewing, 353 S.W.2d 203, 1961 Ky. LEXIS 2 ( Ky. 1961 ).

4.— Evidence.

Where witnesses to an instrument, in will contest, testified that testator’s signature, which was written on a separate piece of paper pasted at end of the instrument, was genuine and had been executed in their presence, and where there existed no suspicion of fraud, evidence authorized finding that instrument was the last will of the deceased, as against contention that signature had been cut from another will and pasted on instrument after testator’s death. Bennett v. Bennett's Ex'x, 303 Ky. 565 , 198 S.W.2d 301, 1946 Ky. LEXIS 899 ( Ky. 1946 ).

Where neither of two instruments sought to be probated as a will were acknowledged before or signed by subscribing witnesses and the two were not wholly written by deceased, the requirements of this section were not met. Scott v. Gastright, 305 Ky. 340 , 204 S.W.2d 367, 1947 Ky. LEXIS 818 ( Ky. 1947 ).

A recitation in the attestation clause that the witnesses had initialed earlier pages did not alone raise a fact issue as to authenticity of uninitialed pages. Wroblewski v. Yeager, 361 S.W.2d 108, 1962 Ky. LEXIS 231 ( Ky. 1962 ).

Where a will had all appearances of authenticity and there was nothing in the case, other than the attestation clause, to raise any serious doubts about its authenticity, the contestants had the burden of proving that there had been a substitution of pages, rather than the proponents being required to prove their authenticity. Wroblewski v. Yeager, 361 S.W.2d 108, 1962 Ky. LEXIS 231 ( Ky. 1962 ).

5.— Multiple Instruments.

Where decedent executed four instruments which were offered for probate, the first properly, the second was dated the same day as the first leaving specific bequests to named individuals but was not signed, the third was subsequent, but the only dispositive provisions appeared under the maker’s signature unsigned, and the fourth was similar to the third, only the first could be probated. Brummett v. Brummett, 331 S.W.2d 719, 1960 Ky. LEXIS 127 ( Ky. 1960 ).

6.— Substantial Compliance.

Where the testator could neither read nor write, and his will was written by another in his absence and the scrivener added the name of the testator thereto, in his absence, but the entire will was read to the testator in the presence of witnesses and he acknowledged same by affixing his mark between the words constituting his name, it was held to be sufficient compliance with this section and a valid will. Garnett v. Foston, 122 Ky. 195 , 91 S.W. 668, 28 Ky. L. Rptr. 1119 , 1906 Ky. LEXIS 37 ( Ky. 1906 ).

A substantial rather than a literal compliance with the statute is required, and, if its object and intent are reached, without violation of its express language, nothing more is required. Madden v. Cornett, 290 Ky. 268 , 160 S.W.2d 607, 1942 Ky. LEXIS 372 ( Ky. 1942 ).

A substantial compliance with this section will suffice, provided there is no violation of the express language. Rybolt v. Futrell, 296 Ky. 158 , 176 S.W.2d 269, 1943 Ky. LEXIS 121 ( Ky. 1943 ).

7.Invalid Will.

Where a deed to a specific tract of realty contained a clause giving the grantee all of the property the grantor may have on his death and the deed did not meet the requirements of this section, it was without validity as to property other than the specific tract as either a deed or a will. Brennenstuhl v. Scharfenberger, 259 S.W.2d 41, 1953 Ky. LEXIS 917 ( Ky. 1953 ).

8.— Validation by Valid Codicil.

An instrument invalid as a will due to the testator’s failure to sign it may be given life or republished and validated by the execution of a valid codicil. Hurley v. Blankinship, 313 Ky. 49 , 229 S.W.2d 963, 1950 Ky. LEXIS 773 ( Ky. 1950 ).

9.— Testamentary Intent.

Holographic instrument did not contain an expression of testamentary intent sufficient to sustain its probate as decedent’s will where, although the instrument was minimally sufficient to dispose of property, there was no evidence that it was intended to take effect at decedent’s death. Mallory v. Mallory, 862 S.W.2d 879, 1993 Ky. LEXIS 122 ( Ky. 1993 ).

10.Wholly Written by Testator.

Where the testator writes his will in his own handwriting and signs it, it is a valid will, even though he labors under the misapprehension that witnesses to such a document are necessary. Toebbe v. Williams, 80 Ky. 661 , 4 Ky. L. Rptr. 563 , 1883 Ky. LEXIS 14 (Ky. Ct. App. 1883).

The words “wholly written by the testator,” mean wholly in the handwriting of the testator. Hence, a will written on the typewriter by the deceased, does not comply with this provision of the statute. Adams' Ex'x v. Beaumont, 226 Ky. 311 , 10 S.W.2d 1106, 1928 Ky. LEXIS 96 ( Ky. 1928 ).

A will may be in the form of a letter addressed to any party, if wholly written in the handwriting of the writer. McNeill v. McNeill, 261 Ky. 240 , 87 S.W.2d 367, 1935 Ky. LEXIS 620 ( Ky. 1935 ). See Landrum v. McNeill, 269 Ky. 474 , 107 S.W.2d 314, 1937 Ky. LEXIS 623 ( Ky. 1937 ).

11.— Evidence.

A testatrix wrote a letter in her own handwriting to her sister, disposing of her property. Her handwriting was not very legible and she had her attorney copy the document for her. The copied document was offered for probate, and the court held that it should be rejected as a will. McNeill v. McNeill, 261 Ky. 240 , 87 S.W.2d 367, 1935 Ky. LEXIS 620 ( Ky. 1935 ). (The decision of this case is not res judicata if the original letter is later presented for probate.) Landrum v. McNeill, 269 Ky. 474 , 107 S.W.2d 314, 1937 Ky. LEXIS 623 ( Ky. 1937 ).

An unattested will consisting of a typewritten form, which testatrix had changed by filling in blanks and making interlineations in her own handwriting, was not admissible to probate as a will “wholly written” by the testatrix, where the written portion was merely an inseparable part of the typewritten instrument, and was not complete in itself. Blankenship v. Blankenship, 276 Ky. 707 , 124 S.W.2d 1060, 1939 Ky. LEXIS 573 ( Ky. 1939 ).

Similarity between specimens of testator’s handwriting and alleged holographic will, consisting of identical style of certain letters and pen strokes, the uniform angle of the writings, and a natural variance of general characteristics dispelling the idea of forgery, coupled with evidence of instability and irregularity in the writing of the will consistent with testimony as to deceased’s weakened condition at time will was written, established genuineness of will. Herd v. Herd, 293 Ky. 258 , 168 S.W.2d 762, 1943 Ky. LEXIS 599 ( Ky. 1943 ).

Where specimens of testator’s handwriting are offered in evidence for purpose of comparison with writing in alleged holographic will, and no handwriting experts testify, the court may itself compare the writings and determine the genuineness of the disputed will. Herd v. Herd, 293 Ky. 258 , 168 S.W.2d 762, 1943 Ky. LEXIS 599 ( Ky. 1943 ).

Court would be disposed to hold instrument to be a valid holographic will, where testator’s signature appeared at the end, even if proof should show that signature had been cut from a prior will and pasted on the instrument. Bennett v. Bennett's Ex'x, 303 Ky. 565 , 198 S.W.2d 301, 1946 Ky. LEXIS 899 ( Ky. 1946 ).

Where a testatrix wrote her will on a printed will form and the handwritten portion of the will was complete in itself and was, without reference to the printed words, it was sufficient to pass the testatrix’s estate as the writing constituted a valid holographic will. Fairweather v. Nord, 388 S.W.2d 122, 1965 Ky. LEXIS 413 ( Ky. 1965 ).

12.Signature of Testator.

A testator, whose name was A. J. Whipps, signed his will “A. J. Whpps.” The signature was held to be valid. Word v. Whipps, 28 S.W. 151, 16 Ky. L. Rptr. 403 (1894).

A testator may subscribe his name to a will by making his own inscription, by making a mark to his name which has been inscribed by another, or by directing another to sign his name in his presence. Weiss v. Hanscom, 305 Ky. 687 , 205 S.W.2d 485, 1947 Ky. LEXIS 907 ( Ky. 1947 ).

Where the will is not wholly written by the testator, the subscription of the testator’s name must be made in the presence of at least two credible witnesses, or the will must be acknowledged by the testator in the presence of at least two credible witnesses; and in either event the witnesses shall subscribe the will with their names in the presence of the testator. Weiss v. Hanscom, 305 Ky. 687 , 205 S.W.2d 485, 1947 Ky. LEXIS 907 ( Ky. 1947 ).

Testator may sign in the presence of one witness and acknowledge the will in the presence of the other witness. Darnaby v. Halley's Ex'r, 306 Ky. 697 , 208 S.W.2d 299, 1947 Ky. LEXIS 1023 ( Ky. 1947 ).

It is not necessary that the testator sign in the presence of the two witnesses. Darnaby v. Halley's Ex'r, 306 Ky. 697 , 208 S.W.2d 299, 1947 Ky. LEXIS 1023 ( Ky. 1947 ).

Where testator’s name was signed to will with help of another at direction of testator and in presence of two witnesses who in turn signed as witnesses in testator’s presence and at proper place, it complied with provisions of this section. Prichard v. Kitchen, 242 S.W.2d 988, 1951 Ky. LEXIS 1093 ( Ky. 1951 ).

A testator need only either sign the will in the presence of a witness or acknowledge it, not both. Bennett v. Craycraft, 290 S.W.2d 615, 1956 Ky. LEXIS 336 ( Ky. 1956 ).

Where the two attesting witnesses to a will testified that the testatrix acknowledged the writing as her will, stated that she had signed it, and requested that they sign it, which they did, this was sufficient to sustain a jury verdict that the will was signed by the testatrix in spite of the testimony of others, including a handwriting expert, that the signature was not that of the testatrix. Campbell v. Knott, 327 S.W.2d 94, 1959 Ky. LEXIS 70 ( Ky. 1959 ).

13.— By Mark.

Where the testator, through physical weakness, was unable to sign his name, and had another to sign his name for him and then made his mark at the proper place in his name, the signature was valid. Savage v. Butler, 76 S.W. 361, 25 Ky. L. Rptr. 763 .

The use of any name or mark intended by the testator as his signature is sufficient compliance with this section. Reed v. Hendrix's Ex'r, 180 Ky. 57 , 201 S.W. 482, 1918 Ky. LEXIS 18 ( Ky. 1918 ) ( Ky. 1918 ).

14.— By Another at His Direction.

Under this section, the will may be signed either by the testator or by someone else in his presence and at his direction. Harned v. Wise, 185 Ky. 60 , 214 S.W. 813, 1919 Ky. LEXIS 238 ( Ky. 1919 ).

15.— At End.

The witnesses must subscribe their names at the end of the will. If the sheet of paper on which the alleged will is written is so folded so as to leave a large blank space between the writing and their names, the document has not been properly executed as a will. Soward v. Soward, 62 Ky. 126 , 1863 Ky. LEXIS 37 ( Ky. 1863 ) (decided under prior law).

The will was so written as to leave a blank page within it, and the testator and the witnesses signed at the end of the writing; such was sufficient compliance with the statute, the end of the will being interpreted to be the end of the writing. Higgins v. Powell, 8 Ky. Op. 768, 1876 Ky. LEXIS 246 (Ky. Ct. App. Oct. 13, 1876).

The will is signed at the end thereof, even though the signature of the testator and the witnesses is followed by the date of the instrument. The date is immaterial. Flood v. Pragoff, 79 Ky. 607 , 3 Ky. L. Rptr. 372 , 1881 Ky. LEXIS 87 (Ky. Ct. App. 1881).

The signature of the testator must be placed at the end of the will under the provisions of KRS 446.060 . Ward v. Putnam, 119 Ky. 889 , 85 S.W. 179, 27 Ky. L. Rptr. 367 , 1905 Ky. LEXIS 56 ( Ky. 1905 ).

Where the entire estate contemplated by the testator is disposed of above the signature, and a paragraph follows the signature appointing an executor, the part of the will above the testator’s signature is valid. Ward v. Putnam, 119 Ky. 889 , 85 S.W. 179, 27 Ky. L. Rptr. 367 , 1905 Ky. LEXIS 56 ( Ky. 1905 ).

Where the testator wrote his will in his own handwriting on a sheet of legal cap paper, and there not being room at the bottom of the page for his signature he wrote his name on the ruled line which runs from the top to the bottom, beginning his signature near the bottom of the page, his signature is at the end of the will. Graham v. Edwards, 162 Ky. 771 , 173 S.W. 127, 1915 Ky. LEXIS 152 ( Ky. 1915 ).

The signature of the testator appearing after the testimonium clause is valid and at the end of the will, even though there is left a blank space between the testimonium clause and the concluding clause of the will. Lucas v. Brown, 187 Ky. 502 , 219 S.W. 796, 1920 Ky. LEXIS 154 ( Ky. 1920 ).

Where the testator signs the will beneath the attestation clause, just above the signature of the witnesses, it is sufficient compliance with the statute requiring the signature to be at the end of the will. McCue v. Turner, 252 Ky. 849 , 68 S.W.2d 415, 1934 Ky. LEXIS 863 ( Ky. 1934 ).

The testatrix wrote her will on a sheet of paper and signed it, all of it being in her own handwriting. On the reverse side of the paper, she, in her own handwriting but without signing under it, wrote a clause of a dispositive nature. What appeared on the reverse side of the paper was considered as an improperly executed codicil, and the will was held valid as being signed at the end. Parrott v. Parrott's Adm'x, 270 Ky. 544 , 110 S.W.2d 272, 1937 Ky. LEXIS 115 ( Ky. 1937 ).

Even with liberal interpretation of the requirement that a will be signed by its maker at the end or close, the maker’s signature on a sealed envelope in which an unsigned will is found does not constitute substantial compliance with the requirement. Miller's Ex'r v. Shannon, 299 S.W.2d 103, 1957 Ky. LEXIS 389 ( Ky. 1957 ).

Deceased’s signature on a holographic will was sufficiently close to the end of the will to meet the requirements of KRS 446.060 because the only items that followed the signature were the date, directions for appointment of an executrix, and the signatures of the witnesses. The information following the signature did not contain information that was essential to the will’s validity or dispositive of the deceased’s estate. Bennett v. Ditto, 204 S.W.3d 145, 2006 Ky. App. LEXIS 294 (Ky. Ct. App. 2006).

16.— Evidence.

Where the mortgage, alleged to have been signed by testator, was introduced to prove that signature to will was not genuine, but there was no proof that signature on mortgage was genuine, obvious discrepancy between signatures could not furnish grounds for upsetting verdict finding signature to will genuine. Alcorn v. Alcorn, 279 Ky. 1 , 129 S.W.2d 520, 1939 Ky. LEXIS 222 ( Ky. 1 939 ).

Testimony of persons not qualified as experts, as to genuineness of handwriting in will, was of little probative value, particularly where such witnesses gave no reasons to support their conclusions. Herd v. Herd, 293 Ky. 258 , 168 S.W.2d 762, 1943 Ky. LEXIS 599 ( Ky. 1943 ).

Testimony of handwriting experts that the signature to a will is not genuine may not be sufficient when opposed by the testimony of subscribing witnesses whose testimony is not otherwise contradicted or discredited, to take the issue to the jury. McKinney v. Chastain, 298 Ky. 833 , 184 S.W.2d 240, 1944 Ky. LEXIS 1026 ( Ky. 1944 ).

Where bankers and others acquainted with the decedent testified that the handwriting of a will was the decedent’s and a handwriting expert testified that in his opinion it was not her writing, the evidence was sufficient to support the jury verdict that the will was in the decedent’s writing. Marcum v. Gallup, 237 S.W.2d 862, 1951 Ky. LEXIS 787 ( Ky. 1951 ).

Where two witnesses to a will testified that it was properly executed, but there were minor inconsistencies in their testimony, there was some evidence attacking the credibility of one of them, and they were both friends of the sole beneficiary under the will, various parties testified that the testatrix had indicated an intention to dispose of her property in a manner other than that specified in the will, and two witnesses with expertise as to handwriting testified that the testatrix’s signature was forged, the trial court properly submitted the question of the validity of the signature to the jury. Reffett v. Hughes, 396 S.W.2d 786, 1965 Ky. LEXIS 127 ( Ky. 1965 ).

Evidence was sufficient to find that the deceased had signed a document that was purported to be her holographic will because it was undisputed that the document was written in the deceased’s handwriting, and the document set forth at the bottom, in the same handwriting, that the will was written by the deceased on June 9, 2002. The deceased plainly and unmistakably acknowledged that she wrote the will and consented to its terms. Bennett v. Ditto, 204 S.W.3d 145, 2006 Ky. App. LEXIS 294 (Ky. Ct. App. 2006).

17.Witnesses.

The witness need not attest the will at the same time, nor in the presence of each other, in order to comply with the law. Maupin's Ex'r v. Wools, 62 Ky. 223 , 1864 Ky. LEXIS 36 ( Ky. 1864 ) (decided under prior law).

If an attesting witness, because of failing eyesight, is unable to identify the will, the will may be identified and the attestation of the witness proven by other attesting witnesses who were present at the execution of the will. Reynolds v. Sevier, 165 Ky. 158 , 176 S.W. 961, 1915 Ky. LEXIS 483 ( Ky. 1915 ) ( Ky. 1915 ).

In a probate proceeding, if the witnesses recognize their signatures and testify that they would not have signed the paper except upon the request of the testator, but neither of them is able to remember anything whatsoever about the execution of the will, there has been sufficient compliance with the statute. McCue v. Turner, 252 Ky. 849 , 68 S.W.2d 415, 1934 Ky. LEXIS 863 ( Ky. 1934 ).

Person who signed testator’s name to will in testator’s presence and at his request, and who signed his own name immediately below that of testator, could be counted as a witness to the will, notwithstanding that typewritten attestation clause did not list him as a witness but only as the signer of the testator’s name, where the person so signing testified positively that he signed his own name with the intention of witnessing the will and that the testator had asked him to witness the will. Darnaby v. Halley's Ex'r, 306 Ky. 697 , 208 S.W.2d 299, 1947 Ky. LEXIS 1023 ( Ky. 1947 ).

Where entire transaction indicated that woman was within the presence of the testator in order to witness the will and to further sign in an official capacity, the fact that she signed as a notary was mere surplusage and did not disqualify her as a witness to the will. Smith v. Neikirk, 548 S.W.2d 156, 1977 Ky. App. LEXIS 645 (Ky. Ct. App. 1977).

18.— Credible.

“Credible” as used in this section, with reference to witnesses, means competent; that is, the witness must not be disqualified to give testimony in a court of justice. Savage v. Bulger, 77 S.W. 717, 25 Ky. L. Rptr. 1269 (1903).

A witness to whom a bequest has been made in the will, is a “credible witness” under this section. Doyle v. Brady, 170 Ky. 316 , 185 S.W. 1133, 1916 Ky. LEXIS 61 ( Ky. 1916 ).

Minor discrepancies in the testimony of the two witnesses to the execution of a will concerning the details of the execution do not prove that either of the witnesses are not credible. Hall v. Childress, 420 S.W.2d 398, 1967 Ky. LEXIS 106 ( Ky. 1967 ).

19.— Signature.

Where only one of the witnesses to the will is within the jurisdiction of the court and he testifies to the acknowledgment of the will and his signature, but cannot say whether or not the other witnesses signed but their handwriting is sufficiently proved, the will has been sufficiently proved for probate. Turner v. Turner, 11 Ky. 101 , 1822 Ky. LEXIS 39 ( Ky. 1822 ) (decided under prior law).

The witnesses may sign, then the testator and if the witnesses thereafter are shown the completed will and recognize their respective signatures, there has been sufficient compliance with the statute. Swift v. Wiley, 40 Ky. 114 , 1840 Ky. LEXIS 97 ( Ky. 1840 ) (decided under prior law).

Where witnesses cannot read and write and another at their direction writes their names for them, and the written names are adopted by the witnesses in the presence of the testator, there has been sufficient compliance with the law. Upchurch v. Upchurch, 55 Ky. 102 , 1855 Ky. LEXIS 26 ( Ky. 1855 ), limited, Soward v. Soward, 62 Ky. 126 , 1863 Ky. LEXIS 37 ( Ky. 1863 ) (decided under prior law).

It is not necessary that the testator orally request the witnesses to witness his will. Farmer's Ex'r v. Farmer's Ex'r, 213 Ky. 147 , 280 S.W. 947, 1926 Ky. LEXIS 469 ( Ky. 1926 ).

One who does not sign a will as a witness, is not a “witness” within the meaning of this section, even though he writes the document for the testator and the testator signs it in his presence. Birch v. Jefferson County Court, 244 Ky. 425 , 51 S.W.2d 258, 1932 Ky. LEXIS 445 ( Ky. 1932 ).

If outward circumstances indicate that the witness intended to sign as a witness, a secret intention not to sign as a witness will not control. Love v. Gibbs, 273 Ky. 775 , 117 S.W.2d 987, 1938 Ky. LEXIS 719 ( Ky. 1938 ).

Scrivener who drafted will and wrote name of testator and one subscribing witness, who were unable to write, and under name of testator wrote “by” his own name, he affixed his signature as an attesting witness, where attestation clause after which signatures were affixed recited “we at his request sign our names here and too in his presence as attesting witnesses.” Love v. Gibbs, 273 Ky. 775 , 117 S.W.2d 987, 1938 Ky. LEXIS 719 ( Ky. 1938 ).

Fact that a subscribing witness signs his name in an official capacity does not invalidate the attestation. Madden v. Cornett, 290 Ky. 268 , 160 S.W.2d 607, 1942 Ky. LEXIS 372 ( Ky. 1942 ).

This section is complied with if testator signs the will in presence of witnesses or acknowledges it within their presence, but in either event the two witnesses must subscribe their names in the presence of the testator. Rybolt v. Futrell, 296 Ky. 158 , 176 S.W.2d 269, 1943 Ky. LEXIS 121 ( Ky. 1943 ).

20.— — In the Presence of Testator.

The testimony of a person who witnessed the will, and who is interested in destroying it, against the will by stating that he did not sign it in the presence of the testator, will be disregarded where it is shown that he signed it in the presence of the testator. Howard's Will, 21 Ky. 199 , 1827 Ky. LEXIS 133 ( Ky. 1827 ) (decided under prior law).

If the will is signed by the witnesses in the same room with the testator but the testator is asleep, the witnesses have not signed the document in the presence of the testator. Orndorff v. Hummer, 51 Ky. 619 , 1851 Ky. LEXIS 118 ( Ky. 1851 ) (decided under prior law).

The witnesses must attest the will in the presence of the testator. If the witness signs in a different room from that which the testator occupies, it is not in his presence even though he can and does hear the conversations with regard to the matter. McKee v. McKee's Ex'r, 155 Ky. 738 , 160 S.W. 261, 1913 Ky. LEXIS 333 ( Ky. 1913 ).

Each witness must attest the will in the presence of the testator, and this is true even though a witness who signs the will in the absence of the testatrix later on has a conversation with her with reference to the matter in the absence of the will. Catlett v. Satterfield, 199 Ky. 617 , 251 S.W. 659, 1923 Ky. LEXIS 885 ( Ky. 1923 ).

The attestation of a witness to a will may be proved by the other witness, if the former does not remember that he signed the will in the presence of the testator. Rowland v. Holt, 253 Ky. 718 , 70 S.W.2d 5, 1934 Ky. LEXIS 719 ( Ky. 1934 ).

If the will is attested in another room than the one testator is in, it is prima facie not done in his presence; if the will is attested in the same room with the testator it is prima facie done in the presence of the testator. Poindexter's Adm'r v. Alexander, 277 Ky. 147 , 125 S.W.2d 981, 1939 Ky. LEXIS 612 ( Ky. 1939 ).

The position of the witness in subscribing the will should be such that the testator might see the will and witness by merely looking in that direction. Poindexter's Adm'r v. Alexander, 277 Ky. 147 , 125 S.W.2d 981, 1939 Ky. LEXIS 612 ( Ky. 1939 ).

Where will was signed by one witness in adjoining room, separated from testator’s bedroom by wall and archway, and testator could not have seen witness sign, will was void. Poindexter's Adm'r v. Alexander, 277 Ky. 147 , 125 S.W.2d 981, 1939 Ky. LEXIS 612 ( Ky. 1939 ).

This section is complied with if testator signs the will in the presence of witnesses or acknowledges it within their presence, but in either event the two witnesses must subscribe their names in the presence of the testator. Rybolt v. Futrell, 296 Ky. 158 , 176 S.W.2d 269, 1943 Ky. LEXIS 121 ( Ky. 1943 ).

Where the testator subscribes the will in the presence of the witnesses, there is no requirement relating to the order in which the signatures are affixed, so long as each attesting signature is made in the testator’s presence. Hopson v. Ewing, 353 S.W.2d 203, 1961 Ky. LEXIS 2 ( Ky. 1961 ).

21.— — By Mark.

If a witness is unable to read and write, he may direct another to sign his name for him and then make his mark when the name is written. Savage v. Butler, 76 S.W. 361, 25 Ky. L. Rptr. 763 .

Witness may subscribe his name by mark as effectually as by writing his signature in full. Love v. Gibbs, 273 Ky. 775 , 117 S.W.2d 987, 1938 Ky. LEXIS 719 ( Ky. 1938 ).

22.— Knowledge of Contents.

The witnesses need not know that it is a will that they are witnessing, nor is it necessary that they see any of the writing if the paper is so folded that they cannot see any writing; it is the signature of the testator that they are witnessing and not the contents of the paper. Flood v. Pragoff, 79 Ky. 607 , 3 Ky. L. Rptr. 372 , 1881 Ky. LEXIS 87 (Ky. Ct. App. 1881).

It is not necessary that either of the witnesses know the contents or that it is a will that they are called upon to witness; if they sign the instrument at the request of the maker, it is sufficient compliance with the statute. P'Pool's Ex'r v. P'Pool's Ex'x, 121 Ky. 588 , 89 S.W. 687, 28 Ky. L. Rptr. 539 , 1905 Ky. LEXIS 246 ( Ky. 1905 ).

It is not necessary that the witnesses to a will know its contents or that it be read to them. Nor is it necessary that they shall understand they are attesting an instrument as a will, but only that there shall be substantial compliance with the statute. Leary v. Leary, 203 Ky. 344 , 262 S.W. 293, 1924 Ky. LEXIS 911 ( Ky. 1924 ).

It is not necessary that witnesses to a will know its contents or even that the instrument is a will. Taliaferro v. King, 279 S.W.2d 793, 1955 Ky. LEXIS 543 ( Ky. 1955 ).

The subscribing witnesses to a will are called upon only to attest the testator’s signature and they are not required to know that the document is a will or what are its contents. Wroblewski v. Yeager, 361 S.W.2d 108, 1962 Ky. LEXIS 231 ( Ky. 1962 ).

23.— Number.

The testatrix in January, 1909, wrote a holographic will. In November, 1911, she had prepared another will which she signed before only one witness. Both wills were offered for probate, and it was held that the January will was entitled to be probated and the November will was not entitled to probate, because it was witnessed by only one witness. Rutledge v. Wiggington, 166 Ky. 421 , 179 S.W. 389, 1915 Ky. LEXIS 698 ( Ky. 1915 ).

Trial court erred in admitting a decedent’s non-holographic will to probate as the admission of the will violated the express language of KRS 394.040 and the doctrine of substantial compliance did not apply where two persons actually observed the decedent subscribing the document, but only one subscribed her name to the document as a witness; no Kentucky decision had upheld the validity of a non-holographic will subscribed by only one witness. Smith v. Smith, 348 S.W.3d 63, 2011 Ky. App. LEXIS 267 (Ky. Ct. App. 2011).

Permitting the probate of a non-holographic document to which only one person has subscribed her name as witness is a violation of the express language of KRS 394.040 . Smith v. Smith, 348 S.W.3d 63, 2011 Ky. App. LEXIS 267 (Ky. Ct. App. 2011).

24.Acknowledgment.

The testator need not sign the will in the presence of the witnesses, but may acknowledge his signature to the witnesses. Shanks v. Christopher, 10 Ky. 144 , 1820 Ky. LEXIS 203 ( Ky. 1820 ) (decided under prior law). See Case of Cochran's Will & Testament, 6 Ky. 491 , 1814 Ky. LEXIS 118 ( Ky. 1814 ) (decided under prior law).

Where the testator had his will drawn and his name signed to it and handed it to one of the witnesses and requested that witness to witness it as his will, and that witness and the testator went into the room where the other witness was and the first witness requested the second witness to sign the will as the will of the testator, there was sufficient acknowledgment of his signature by the testator to the second witness. Denton v. Franklin, 48 Ky. 28 , 1848 Ky. LEXIS 9 ( Ky. 1848 ) (decided under prior law). See Griffith's Ex'r v. Griffith, 44 Ky. 511 , 1845 Ky. LEXIS 49 ( Ky. 1845 ) (decided under prior law).

Where all of the witnesses are present and see the testator sign his name to a document, no special acknowledgment is necessary. Savage v. Butler, 76 S.W. 361, 25 Ky. L. Rptr. 763 .

The testator must add his signature to the will before he can acknowledge it before a witness under this section. Limbach v. Bolin, 169 Ky. 204 , 183 S.W. 495, 1916 Ky. LEXIS 673 ( Ky. 1916 ) ( Ky. 1916 ).

The testator need not sign the will in the presence of the witnesses, but may acknowledge it in their presence. When the testator requests witnesses to come to her home to witness her will and they appear, and inquiry is made in the presence of the testator by the writer of the will as to whether they came to witness the will and they reply in the affirmative and proceed to sign their names to the document, it is sufficient acknowledgment on the part of the testator. Reed v. Hendrix's Ex'r, 180 Ky. 57 , 201 S.W. 482, 1918 Ky. LEXIS 18 ( Ky. 1918 ) ( Ky. 1918 ).

Where the testator does not sign the will in the presence of the witnesses, but the witnesses are called by a third party out of her presence to witness her will, and the third party while in the presence of the testator merely tells the witnesses to sign the paper, there is not a sufficient acknowledgment of the signature of the testator by the testator and the will is invalid. Moore v. Sanders, 202 Ky. 286 , 259 S.W. 361, 1924 Ky. LEXIS 705 ( Ky. 1924 ).

This section refers to the will and not to the signature as the subject of acknowledgment. Robertson v. Robertson, 232 Ky. 572 , 24 S.W.2d 282, 1930 Ky. LEXIS 44 ( Ky. 1930 ). See Barton's Adm'r v. Barton, 244 S.W.2d 770, 1951 Ky. LEXIS 1251 ( Ky. 1951 ).

Where neither of two instruments sought to be probated as a will was acknowledged before or signed by subscribing witnesses and the two were not wholly written by deceased, the requirements of this section were not met. Scott v. Gastright, 305 Ky. 340 , 204 S.W.2d 367, 1947 Ky. LEXIS 818 ( Ky. 1947 ).

Testator may acknowledge the paper as his will in the presence of the witnesses prior to their signing it. Darnaby v. Halley's Ex'r, 306 Ky. 697 , 208 S.W.2d 299, 1947 Ky. LEXIS 1023 ( Ky. 1947 ).

In acknowledging a will, it is not necessary that the testator personally state to the witnesses that he acknowledges the will, but is sufficient if he assents thereto. Campbell v. Knott, 327 S.W.2d 94, 1959 Ky. LEXIS 70 ( Ky. 1959 ).

An acknowledgment of the paper as a will subsequent to signing it satisfies this section and an acknowledgment of the testator’s name on it as being his signature is not necessary. Campbell v. Knott, 327 S.W.2d 94, 1959 Ky. LEXIS 70 ( Ky. 1959 ).

25.Attestation Clause.

Where attestation clause recites facts showing manner in which signatures were affixed, it cannot be impeached by contradictory testimony of one of subscribing witnesses, but where clause does not recite the facts but merely that will was signed “in the presence of the testator,” testimony of subscribing witness that she signed in a place where the testator could not see her was effective to overcome the presumption of regularity of execution. Poindexter's Adm'r v. Alexander, 277 Ky. 147 , 125 S.W.2d 981, 1939 Ky. LEXIS 612 ( Ky. 1939 ).

An attestation clause is merely hearsay and there is no policy warranting exception to the hearsay rule as to statements therein relating to acts not required of the witnesses. Wroblewski v. Yeager, 361 S.W.2d 108, 1962 Ky. LEXIS 231 ( Ky. 1962 ).

26.Execution.

Where the testator’s name had been signed to the will by another, and the testator recognized it as his will and requested one to witness it, the execution is in compliance with the statute, whether the witness signed it before the testator made his mark to his signature or thereafter. Sechrest v. Edwards, 61 Ky. 163 , 1862 Ky. LEXIS 41 ( Ky. 1862 ) (decided under prior law).

The question as to who wrote a will for the testator is immaterial, so long as the proper execution thereof is shown. Threlkeld v. Bond, 92 S.W. 606, 29 Ky. L. Rptr. 177 (1906).

The due execution of the will is a question of fact for the jury. Caddell's Heirs v. Caddell's Ex'x, 175 Ky. 505 , 194 S.W. 541, 1917 Ky. LEXIS 340 ( Ky. 1917 ). See Allgeyer v. Allgeyer's Ex'rs, 244 Ky. 450 , 51 S.W.2d 445, 1932 Ky. LEXIS 451 ( Ky. 1932 ).

Evidence indicating that will was signed by testator not in presence of witnesses but was acknowledged as his will to two witnesses who signed the will at different times, not in presence of each other but in presence of testator, was sufficient to submit question of due execution of will to jury. Barton's Adm'r v. Barton, 244 S.W.2d 770, 1951 Ky. LEXIS 1251 ( Ky. 1951 ).

Where one witness to a will testified that the will was duly executed but the other testified that the testatrix neither signed nor acknowledged the will in his presence, the question of whether the will was validly executed was for the jury. Bennett v. Craycraft, 290 S.W.2d 615, 1956 Ky. LEXIS 336 ( Ky. 1956 ).

Where the technical requirements for execution of wills have been substantially complied with, the will should be probated. Smith v. Neikirk, 548 S.W.2d 156, 1977 Ky. App. LEXIS 645 (Ky. Ct. App. 1977).

27.— Proof.

If the subscribing witness cannot recollect his attestation but recognizes his handwriting, and declares it was his practice never to attest without hearing the acknowledgment of the parties, this is evidence to be left to the jury as to the due execution of the will. Pate's Adm'r v. Joe, 26 Ky. 113 , 1829 Ky. LEXIS 189 ( Ky. 1829 ) (decided under prior law). See Gwinn v. Radford, 12 Ky. 137 , 1822 Ky. LEXIS 183 ( Ky. 1822 ) (decided under prior law).

Upon the presentation of the will for probate, it is not necessary that both witnesses thereto be introduced as witnesses even though they both are available. And even though it was necessary to present both witnesses, the contestant may waive it by presenting the witness who was not presented by the propounders. Holden v. Bennett, 243 Ky. 667 , 49 S.W.2d 568, 1932 Ky. LEXIS 175 ( Ky. 1932 ).

The burden is on propounders of will to establish the validity of its execution. Poindexter's Adm'r v. Alexander, 277 Ky. 147 , 125 S.W.2d 981, 1939 Ky. LEXIS 612 ( Ky. 1939 ).

Evidence as to declarations by deceased as to whether he had or had not made a will was admissible on question of whether purported will was written and signed by deceased, or was a forgery. Herd v. Herd, 293 Ky. 258 , 168 S.W.2d 762, 1943 Ky. LEXIS 599 ( Ky. 1943 ).

Evidence by interested heirs tending to show that deceased could not have written will on day recited in will was not sufficient to support finding that will was not written by testator, as against strong evidence by disinterested parties that deceased did write the will on that day, such evidence consisting of testimony of some parties that they saw deceased make the will, of others that testator showed them the will and said he had written it that day, and evidence that will was copied from a typewritten form furnished to deceased on that day. Herd v. Herd, 293 Ky. 258 , 168 S.W.2d 762, 1943 Ky. LEXIS 599 ( Ky. 1943 ).

Where their absence is properly accounted for, subscribing witnesses are not essential for proving execution of a will. White v. Brennan's Adm'r, 307 Ky. 776 , 212 S.W.2d 299, 1948 Ky. LEXIS 830 ( Ky. 1948 ).

Where the scrivener, a lawyer of considerable repute, testifies that the will was executed in accordance with the laws of Kentucky, this is sufficient to prove execution of the will although he cannot recall the names of the witnesses. White v. Brennan's Adm'r, 307 Ky. 776 , 212 S.W.2d 299, 1948 Ky. LEXIS 830 ( Ky. 1948 ).

The testimony of an attorney who wrote a will is sufficient to prove the contents of the will. White v. Brennan's Adm'r, 307 Ky. 776 , 212 S.W.2d 299, 1948 Ky. LEXIS 830 ( Ky. 1948 ).

Where the testator failed to acknowledge to one of the two witnesses to his will that the signature thereon was his, neither witness was present when the testator signed the will, and the testator was not present when either witness signed it, the will was not properly executed and was not entitled to probate. Lowrance v. Moreland, 310 Ky. 533 , 221 S.W.2d 62, 1949 Ky. LEXIS 955 ( Ky. 1949 ).

The burden of showing proper execution of the will is on the propounders. Hopson v. Ewing, 353 S.W.2d 203, 1961 Ky. LEXIS 2 ( Ky. 1961 ).

28.— On Sunday.

Will executed on Sunday is not invalidated by Sunday closing law. Hall v. Childress, 420 S.W.2d 398, 1967 Ky. LEXIS 106 ( Ky. 1967 ).

29.— Re-execution.

Where the testator called one of the witnesses to his will, and in his presence and the presence of a third party made alterations in his will by raising the amounts of bequests to his two sons and had the third party sign the will as a witness without again signing the will or having the witness who was present again sign the will, the will was not re-executed under this section. Carpenter v. Wynn, 252 Ky. 543 , 67 S.W.2d 688, 1934 Ky. LEXIS 801 ( Ky. 1934 ).

30.Lost Will.

To establish a lost will, three essential requirements are necessary: (1) proof of due execution of the will; (2) contents of the will; and (3) continued existence of the will unrevoked by the testator. Rowland v. Holt, 253 Ky. 718 , 70 S.W.2d 5, 1934 Ky. LEXIS 719 ( Ky. 1934 ).

In order to establish a lost will, the proponent must prove: (1) the due execution of the will, (2) its loss or displacement, (3) its contents, and (4) the continued recognition of the will by the testator or other acts showing that he had not revoked it. Caudill v. Loar, 293 Ky. 223 , 168 S.W.2d 757, 1943 Ky. LEXIS 597 ( Ky. 1943 ). See Callihan v. Luster, 305 S.W.2d 530, 1957 Ky. LEXIS 320 ( Ky. 1957 ).

31.— Establishment.

Burden rests on one seeking to establish alleged lost will to prove by convincing evidence due execution thereof, its loss or misplacement, its contents, and the continued recognition of will by testator or other acts showing that he had not revoked it. White v. Brennan's Adm'r, 307 Ky. 776 , 212 S.W.2d 299, 1948 Ky. LEXIS 830 ( Ky. 1948 ).

Where will was mailed to the now deceased husband of the primary beneficiary, who was also named executor, and a search of the effects of both the named executor and the testator failed to find the will, loss of the will was sufficiently proven. White v. Brennan's Adm'r, 307 Ky. 776 , 212 S.W.2d 299, 1948 Ky. LEXIS 830 ( Ky. 1948 ).

In the case of a lost will execution is proven as in the case of a will which is not lost. White v. Brennan's Adm'r, 307 Ky. 776 , 212 S.W.2d 299, 1948 Ky. LEXIS 830 ( Ky. 1948 ).

In action to probate lost will, testimony by attorney that he drew the will, that he couldn’t recall names of witnesses but that at least two witnesses were present and signed in presence of testatrix and that she signed will in their presence, and production of copy of will was sufficient to prove execution of will. White v. Brennan's Adm'r, 307 Ky. 776 , 212 S.W.2d 299, 1948 Ky. LEXIS 830 ( Ky. 1948 ).

Evidence was insufficient to uphold the validity of a purported lost will where the document purported to be a copy of the lost will was apparently signed by the decedent, but did not contain signatures of the attesting witnesses, because (1) several witnesses testified that they had seen the decedent’s will and that the copy offered for probate was identical to the will they had seen with the exception that the original will contained two (2) signatures on the lines provided for the attesting witnesses, (2) none of the witnesses could recall the names of either of the alleged attesting witnesses, and (3) there was no witness who testified that he had seen the decedent or the attesting witnesses sign the will, much less execute it in the presence of each other. Thompson v. Hardy, 43 S.W.3d 281, 2000 Ky. App. LEXIS 119 (Ky. Ct. App. 2000).

Cited:

Houser v. Paducah Lands Co., 157 Ky. 252 , 162 S.W. 1113, 1914 Ky. LEXIS 260 ( Ky. 1914 ); Polley v. Cline’s Ex’r, 263 Ky. 659 , 93 S.W.2d 363, 1936 Ky. LEXIS 233 (1936); Rybolt v. Futrell, 296 Ky. 158 , 176 S.W.2d 269, 1943 Ky. LEXIS 121 ( Ky. 1943 ); McCray v. Long, 303 S.W.2d 296, 1957 Ky. LEXIS 251 ( Ky. 1957 ); Lyons v. Brown, 352 S.W.2d 549, 1960 Ky. LEXIS 4 ( Ky. 1961 ); Conley v. Brewer, 666 S.W.2d 751, 1983 Ky. App. LEXIS 404 (Ky. Ct. App. 1983); Barnard v. Stone, 933 S.W.2d 394, 1996 Ky. LEXIS 114 ( Ky. 1996 ).

Research References and Practice Aids

Cross-References.

Signature to be at end of writing, KRS 446.060 .

Kentucky Bench & Bar.

Schneider, Self-Proved Wills in Kentucky: Problems and Recommendations, Vol. 45, No. 1, January 1981, Ky. Bench & Bar 22.

Kentucky Law Journal.

Whiteside and Kostas, Recent Development in the Kentucky Law of Wills — 1949-1954, 42 Ky. L.J. 671 (1954).

Kentucky Law Survey, Bratt, Property, 73 Ky. L.J. 459 (1984-85).

Northern Kentucky Law Review.

Notes, Attorneys — Malpractice — Driving Lawyers from the Citadel: Attorney's Liability to Third Parties for Malpractice After Hill v. Willmott, 6 N. Ky. L. Rev. 229 (1979).

Schneider, Self-Proved Wills — A Trap for the Unwary, 8 N. Ky. L. Rev. 539 (1981).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Wills, § 230.00.

Kentucky Instructions To Juries (Civil), 5th Ed., Wills, § 50.04.

394.050. Soldier or sailor may make nuncupative will, how. [Repealed.]

Compiler’s Notes.

This section (4830) was repealed by Acts 1972, ch. 168, § 17.

394.060. Devise or bequest extends to an execution of power. [Repealed]

History. 4845: amend. Acts 1972, ch. 168, § 8; repealed by 2020 ch. 41, § 40, effective July 15, 2020.

394.065. Validity of trust, devise or legacy not affected by specified provisions.

  1. No writing declaring and creating a trust, including a life insurance trust, when otherwise valid, shall be an invalid trust or a testamentary disposition of property because the grantor of the trust reserves to himself: (a) the income of the trust estate for his life, or any other period, or the right to receive the income of the trust estate or have it used for his benefit for his life, or any other period, whether at the grantor’s direction or in the trustee’s discretion; and/or (b) the right to receive amounts of the trust principal or have such amounts used for his benefit whether at the grantor’s direction or in the discretion of the trustee; and/or (c) the right, at any time during his lifetime, to modify, alter, amend or revoke the trust instrument, in whole or in part; and/or (d) the right, at any time during his lifetime, to make recommendations to or direct the trustee as to any or all investments of the trustee and any or all administrative or other functions of the trustee.
  2. Subsection (1) above shall be applicable to all writings executed after its enactment and to all writings previously executed if the grantor is living at the time of its enactment.

History. Enact. Acts 1964, ch. 128, § 1 (1), (3).

394.070. Appointment by will in exercise of a power — When valid. [Repealed]

History. 4829; repealed by 2020 ch. 41, § 40, effective July 15, 2020.

394.075. Uniform Testamentary Additions to Trusts Act. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1966, ch. 49, §§ 1 to 4) was repealed by Acts 1998, ch. 415, § 12, effective July 15, 1998.

394.076. Uniform testamentary additions to trust act.

  1. A will may validly transfer property to the trustee of a trust:
    1. Established during the testator’s lifetime by the testator, by the testator and one (1) or more other persons, or by one (1) or more other persons, including a funded or unfunded life insurance trust, although one (1) or more persons other than the trustee have reserved any or all rights of ownership of the insurance contracts; or
    2. Established at the testator’s death by the testator’s transfer to the trustee, if the trust is identified in the testator’s will and its terms are set forth in a written instrument, other than a will, executed before, concurrently with, or after the execution of the testator’s will or in another individual’s will if that other individual has predeceased the testator, regardless of the existence, size, or character of the corpus of the trust.
  2. A transfer referred to in subsection (1) of this section shall not be invalid because the trust is amendable or revocable, or because the trust was amended after the execution of the will or the testator’s death.
  3. Unless the testator’s will provides otherwise, property transferred to a trust in accordance with subsection (1) of this section shall not be held under a testamentary trust of the testator but shall become a part of the trust to which it is transferred. The property shall be administered and disposed of in accordance with the provisions of the governing instrument setting forth the terms of the trust, including any amendments to it made before or after the testator’s death.
  4. Unless the testator’s will provides otherwise, a revocation or termination of the trust before the testator’s death shall cause the devise or bequest to lapse.
  5. This section shall be effective for any devise or bequest made by wills of decedents dying on or after July 15, 1998.
  6. This section shall be construed to effectuate its general purpose to make uniform the law of those states that enact it.
  7. This section may be cited as the Uniform Testamentary Additions to Trusts Act.

History. Enact. Acts 1998, ch. 415, § 10, effective July 15, 1998.

NOTES TO DECISIONS

1.“Dry” Trusts.

Since the adoption of the Uniform Testamentary Additions to Trust Act, KRS 394.076 , a so-called “dry trust” is a valid trust, imposing fiduciary duties upon trustees the moment the trust is created. Cummings v. Pitman, 239 S.W.3d 77, 2007 Ky. LEXIS 242 ( Ky. 2007 ), overruled in part, Caesars Riverboat Casino, LLC v. Beach, 336 S.W.3d 51, 2011 Ky. LEXIS 38 ( Ky. 2011 ).

394.080. Revocation of will — How effected.

No will or codicil, or any part thereof, shall be revoked, except:

  1. By subsequent will or codicil;
  2. By some writing declaring an intention to revoke the will or codicil, and executed in the manner in which a will is required to be executed; or
  3. By the person who made the will, or some person in his presence and by his direction, cutting, tearing, burning, obliterating, canceling, or destroying the will or codicil, or the signature thereto, with the intent to revoke.

History. 4833: amend. Acts 1974, ch. 299, § 3; 1982, ch. 361, § 2, effective July 15, 1982; 1998, ch. 408, § 2, effective July 15, 1998.

NOTES TO DECISIONS

1.Application.

This section is applicable to a valid, subsisting will, and is not applicable to a contingent will which comes into being upon the happening of the contingency or is revoked by the happening of the contingency, where the testator died after the happening of the contingency without any valid act of re-execution. Walker v. Hibbard, 185 Ky. 795 , 215 S.W. 800, 1919 Ky. LEXIS 379 ( Ky. 1919 ).

2.Revocation.

Where the devisee in a will forcibly prevents the testator from destroying the will and thereby revoking it, the will has not been revoked and is valid. Gains v. Gains, 9 Ky. 190 , 1820 Ky. LEXIS 2 ( Ky. 1820 ) (decided under prior law).

There must be, in addition to the act of revocation, the intent to revoke, and both must concur in order for there to be legal revocation of a will. Sanders' Adm'r v. Babbitt, 106 Ky. 646 , 51 S.W. 163 ( Ky. 1899 ).

Evidence that the wife, who was the sole devisee, told the testator that his will had been destroyed, and thereby prevented him from destroying the same as was his desire, is not sufficient to show a revocation of the will. Trice v. Shipton, 113 Ky. 102 , 67 S.W. 377, 23 Ky. L. Rptr. 2392 , 1902 Ky. LEXIS 31 ( Ky. 1902 ).

Revocation may be in whole or in part, and where the testator, after the execution of his will, cut off one of the sheets containing two clauses, the will minus the two clauses may be probated. Russell v. Tyler, 224 Ky. 511 , 6 S.W.2d 707, 1928 Ky. LEXIS 642 ( Ky. 1928 ).

Revocation of a will may be accomplished by the concurrence of the testator’s intent and some overt act on his part. Wagner v. Wagner, 303 Ky. 140 , 197 S.W.2d 86, 1946 Ky. LEXIS 808 ( Ky. 1946 ).

Because KRS 394.090 governed the revocation of wills at the time the decedent executed his will and remarried, and that statute unambiguously provided that marriage revoked the will, the fact that the statute was revised in 1998 did not change the result; hence, as the decedent never revived that will which had been revoked by operation of law, said will was void. Conn v. Conn, 2005 Ky. App. LEXIS 199 (Ky. Ct. App. Sept. 16, 2005, sub. op., 2005 Ky. App. Unpub. LEXIS 732 (Ky. Ct. App. Sept. 16, 2005), review denied, ordered not published, 2006 Ky. LEXIS 64 (Ky. Mar. 15, 2006).

3.— Codicils.

Where a codicil contained no revocation clause and was void as creating an estate in violation of the rule against perpetuities, and it does not appear by implication that the testator intended to revoke the former will, neither the will nor any part thereof is revoked. United States Fidelity & Guaranty Co. v. Douglas' Trustee, 134 Ky. 374 , 120 S.W. 328, 1909 Ky. LEXIS 390 ( Ky. 1909 ).

Where original will created trust in specified amounts for brothers of testatrix, with remainder to niece, codicil enlarging amounts to be held in trust for brothers did not have effect of revoking remainder provision of original will, although remaining clause was not repeated in codicil. Fidelity & Columbia Trust Co. v. Vivian, 294 Ky. 390 , 171 S.W.2d 987, 1943 Ky. LEXIS 449 ( Ky. 1943 ).

Unsigned purported codicils, which set out changes in a previously executed valid will, are of no effect either as codicils or as revocations of the prior will. Georgetown College, Inc. v. Webb, 313 Ky. 25 , 230 S.W.2d 84, 1950 Ky. LEXIS 799 ( Ky. 1950 ).

4.— Subsequent Will or Codicil.

It does not follow from the mere proof of the execution of a subsequent will that the prior will has been revoked. In order to have that effect, the subsequent will must contain a clause expressly revoking former wills or make a disposition of the testator’s entire estate. Muller v. Muller, 108 Ky. 511 , 56 S.W. 802, 22 Ky. L. Rptr. 207 , 1900 Ky. LEXIS 64 ( Ky. 1900 ).

In order to revoke a will or a part thereof by a subsequent instrument under this subsection, the instrument must be testamentary in character. Thruston's Adm'r v. Prather, 77 S.W. 354, 25 Ky. L. Rptr. 1137 (1903).

In order to show that an instrument revokes the will or modifies it, it is necessary to show by some evidence that the instrument was executed subsequently to the date of the will. Thruston's Adm'r v. Prather, 77 S.W. 354, 25 Ky. L. Rptr. 1137 (1903).

The execution of a subsequent valid will, disposing of the entire estate of the testator, revokes prior wills. P'Pool's Ex'r v. P'Pool's Ex'x, 121 Ky. 588 , 89 S.W. 687, 28 Ky. L. Rptr. 539 , 1905 Ky. LEXIS 246 ( Ky. 1905 ).

The testatrix by her will dated Aug. 29, 1906, and in clauses 11 and 12 thereof, made conditional devises to her nephew. By a codicil dated Aug. 29, 1917, in which she referred to her last will of July 20, 1906, and to clauses 7 and 8 thereof, recited that the nephew had breached the conditions and revoked the devises to him. The court held that in the codicil she meant to refer to her last will, and that the devises to the nephew had been revoked. Slaughter's Adm'r v. Wyman, 228 Ky. 226 , 14 S.W.2d 777, 1929 Ky. LEXIS 520 ( Ky. 1929 ).

Where one makes a second will expressly revoking all other wills, all prior wills are revoked, regardless of fact that void provisions are made in the second will. Wallingford's Ex'r v. Wallingford's Adm'r, 266 Ky. 723 , 99 S.W.2d 729, 1936 Ky. LEXIS 708 ( Ky. 1936 ).

Where, after testator’s death, two wills were found together in the same place, one dated in 1940 and the other in 1943, and both capable of being construed as complete instruments within themselves, and it was established by evidence that between 1940 and 1943 the testator had sold a large farm devised in the first will, and had created two trust funds for his children, so as to make a substantial change in conditions since the date of the first will, it was held that the second will revoked the first, even though there was no specific revocation clause in the second will. Wagner v. Wagner, 303 Ky. 140 , 197 S.W.2d 86, 1946 Ky. LEXIS 808 ( Ky. 1946 ).

5.— Destruction.

The destruction of a will by a third person at the direction of the testator, but out of the presence of the testator, is not a revocation thereof, even though the person reports to the testator that the will has been destroyed and the testator approves and ratifies the act of destruction. Miller v. Harrell, 175 Ky. 578 , 194 S.W. 782, 1917 Ky. LEXIS 356 ( Ky. 1917 ).

The acts of destruction, in order to revoke a will, must be done by the testator, or by another in his presence and at his direction. Myers v. Young, 195 Ky. 527 , 242 S.W. 864, 1922 Ky. LEXIS 363 ( Ky. 1922 ).

A will burned by someone other than the testator is not revoked unless it is burned in the presence of the testator and at his direction. Watson v. Watson, 245 S.W.2d 586, 1952 Ky. LEXIS 593 ( Ky. 1952 ).

6.— Mutilation.

Where the testator cuts out certain clauses of his will, with the intent of revoking only those clauses and leaving the balance of his will in effect, only the clauses that were cut out are revoked and the remainder of his will remains in full force and effect. Brown's Will, 40 Ky. 56 , 1840 Ky. LEXIS 75 ( Ky. 1840 ) (decided under prior law).

Where the will is found after the death of the testator, with his signature thereto cut off, the presumption is that he did it with the intent to revoke the will. Youse v. Forman, 68 Ky. 337 , 1869 Ky. LEXIS 14 ( Ky. 1869 ) (decided under prior law).

Where the testator directs another to cut his name and the names of the witnesses from a will, and then, in his own handwriting, makes additions to the will and signs it but does not have the instrument witnessed, and it is found in such mutilated condition after his death, the will has been revoked and has not been re-executed according to the law of wills. Sanders' Adm'r v. Babbitt, 106 Ky. 646 , 51 S.W. 163 ( Ky. 1899 ).

Where the will was in the possession of the testatrix and found after her death, with certain provisions of the will crossed out by an “x” on the typewriter, it was held that those provisions had been revoked even though they were still legible. Stuart v. McWhorter, 238 Ky. 82 , 36 S.W.2d 842, 1931 Ky. LEXIS 182 ( Ky. 1931 ).

Where the testator, without re-executing the will, draws a line through legacies of $500 to his two sons and raises the amount to $700, the legacies are not thereby revoked. The intent of the testator was to give each son at least $500 and not to revoke the legacies completely, and such must be his intent before a complete revocation will be decreed. Carpenter v. Wynn, 252 Ky. 543 , 67 S.W.2d 688, 1934 Ky. LEXIS 801 ( Ky. 1934 ).

Where a will had been cut or torn so that two pieces remained and one item, a money bequest, had been eliminated and there was no evidence that the will had been out of the possession of the testatrix, the facts support the finding that the testatrix intended only to change the will by deleting the missing provision and not to revoke the entire will, thus it was proper to probate the remaining pieces as her will. Flora v. Hughes, 312 Ky. 478 , 228 S.W.2d 27, 1950 Ky. LEXIS 681 ( Ky. 1950 ).

7.— Erasure.

The erasing of the name of the executor, and the writing in the will the name of another person who was to be appointed executor, does not affect the will in any manner. Wells v. Wells, 20 Ky. 152 , 1826 Ky. LEXIS 145 ( Ky. 1826 ) (decided under prior law).

The testator may destroy a bequest in a will, by erasing it, without affecting the other parts of the will. No republication of the will is necessary to make the other parts of the will valid, but the testator must be of sound mind at the time of the erasures. Tudor v. Tudor, 56 Ky. 383 , 1856 Ky. LEXIS 41 ( Ky. 1856 ) (decided under prior law).

8.— Lost Will.

In a proceeding to probate a lost will, evidence that testator had frequently mentioned the will and its contents, up to a short time before his death, was sufficient to establish that he had not revoked it, notwithstanding testimony of one witness that testator had shown him a different will. Caudill v. Loar, 293 Ky. 223 , 168 S.W.2d 757, 1943 Ky. LEXIS 597 ( Ky. 1943 ).

9.— Presumption.

The general rule is that if a will be traced to the hands of the maker, and cannot afterwards be found, it is presumed that it was destroyed by him with the intent to revoke. Minor v. Guthrie, 4 S.W. 179, 9 Ky. L. Rptr. 113 (Ky. Ct. App. 1887).

In absence of evidence that testatrix ever had missing will in her possession, presumption that she had destroyed will did not arise. White v. Brennan's Adm'r, 307 Ky. 776 , 212 S.W.2d 299, 1948 Ky. LEXIS 830 ( Ky. 1948 ).

Where a will sent directly to the named executor, who predeceased the testator, and the will was not found among the effects of either the named executor or the testator, there is no presumption that the testator revoked the will in the absence of any showing that the testator ever had possession of the will. White v. Brennan's Adm'r, 307 Ky. 776 , 212 S.W.2d 299, 1948 Ky. LEXIS 830 ( Ky. 1948 ).

10.— Residuary Clause.

District Court’s probate of will was proper when item leaving money to daughter and daughter’s name in the residuary clause were deleted by testator with an intent to revoke all gifts to the daughter; such a revocation had the statutory effect of increasing the residuary amounts to two others taking under the residuary clause. Conley v. Brewer, 666 S.W.2d 751, 1983 Ky. App. LEXIS 404 (Ky. Ct. App. 1983).

Testator who deleted bequest to daughter and deleted daughter’s name from residuary clause validly revoked any devises to the daughter, in accordance with subdivision (4) of this section; the revoked devises passed to the residuary clause pursuant to KRS 394.500 and the fact that the residuary amounts were consequently increased had no effect on the validity of the revocation. Conley v. Brewer, 666 S.W.2d 751, 1983 Ky. App. LEXIS 404 (Ky. Ct. App. 1983).

11.— Divorce.

This section, which was the law in effect at the time the testator died, does not operate to revoke a will upon divorce; therefore, where testator died after a divorce was granted, his will was not revoked. Welsh v. Robison, 702 S.W.2d 455, 1986 Ky. App. LEXIS 1041 (Ky. Ct. App. 1986), overruled, Winebrenner v. Dorten, 825 S.W.2d 836, 1991 Ky. LEXIS 201 ( Ky. 1991 ).

12.— Mental Capacity.

An incompetent person cannot revoke a will by destroying or having it destroyed. The act of destruction requires mind, discretion and judgment, as well as the act of making a will. Allison's Devisees v. Allison's Heirs, 37 Ky. 90 , 1838 Ky. LEXIS 105 ( Ky. 1838 ) (decided under prior law).

Cited:

Hendricks v. Johnson, 297 Ky. 643 , 180 S.W.2d 868, 1944 Ky. LEXIS 785 ( Ky. 1944 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Bratt, Property, 73 Ky. L.J. 459 (1984-85).

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 90 (1993-94).

Treatises

Kentucky Instructions To Juries (Civil), 5th Ed., Wills, § 50.04.

394.090. Nonrevocation of will by marriage of testator.

A will shall not be revoked by the marriage of the person who made the will.

History. 4832: amend. Acts 1974, ch. 18, § 1; 1988, ch. 90, § 4, effective July 15, 1988; 1998, ch. 408, § 1, effective July 15, 1998.

NOTES TO DECISIONS

1.Revocation by Marriage.

Subsequent marriage revokes will, including will made pursuant to contract. Thompson v. Close, 280 Ky. 720 , 134 S.W.2d 635, 1939 Ky. LEXIS 210 ( Ky. 1939 ) (decided under prior law).

This section had no application, except as an expression of policy in regard to the protection of the wife’s property rights, in determining whether a second wife could claim her dower rights as against divorced first wife, to whom husband was obligated by contract incorporated in divorce judgment to leave his entire estate by will. Even if the will would be revoked by second marriage, there would still remain the question of the right of the divorced wife to enforce the contract. Wides v. Wides' Ex'r, 299 Ky. 103 , 184 S.W.2d 579, 1944 Ky. LEXIS 1037 ( Ky. 1944 ) (decided under prior law).

The remarriage of testator after the execution of his will operated to invalidate the will. Duvall v. Garrett, 457 S.W.2d 263, 1970 Ky. LEXIS 196 ( Ky. 1970 ) (decided under prior law).

A decedent’s will was revoked upon his marriage by operation of law the day after he executed it on October 30, 1990, pursuant to former KRS 394.090 , as the earlier provisions of KRS 394.090 were clear, unambiguous, and time-honored. After his marriage, the decedent never attempted to revive the revoked will in any manner, and consequently, at the time of his death in 2002, he had no will and died intestate. Riggins v. Floyd, 189 S.W.3d 147, 2005 Ky. App. LEXIS 195 (Ky. Ct. App. 2005).

Because KRS 394.090 governed the revocation of wills at the time the decedent executed his will and remarried, and that statute unambiguously provided that marriage revoked the will, the fact that the statute was revised in 1998 did not change the result; hence, as the decedent never revived that will which had been revoked by operation of law, said will was void. Conn v. Conn, 2005 Ky. App. LEXIS 199 (Ky. Ct. App. Sept. 16, 2005, sub. op., 2005 Ky. App. Unpub. LEXIS 732 (Ky. Ct. App. Sept. 16, 2005), review denied, ordered not published, 2006 Ky. LEXIS 64 (Ky. Mar. 15, 2006).

2.— Contract to Execute Reciprocal Wills.

A contract between husband and wife to execute reciprocal wills is not revoked by the operation of this section upon the husband’s remarriage after the death of the wife. Boner's Adm'x v. Chesnut's Ex'r, 317 S.W.2d 867, 1958 Ky. LEXIS 105 ( Ky. 1958 ), limited, Arndell v. Peay, 411 S.W.2d 473, 1967 Ky. LEXIS 477 ( Ky. 1967 ) (decided under prior law).

3.— Will Contingent upon Marriage.

Where a will made five days before marriage was made contingent upon testator’s marriage, it did not become effective until such marriage and was, therefore, not revoked by this section. Puckett's Ex'x v. Puckett, 305 Ky. 812 , 205 S.W.2d 1016, 1947 Ky. LEXIS 935 ( Ky. 1947 ) (decided under prior law).

4.— Effect on Pre-Existing Trust.

Where on holds land impressed with a parol trust in favor of his grandchildren and makes a will pursuant to the terms of that trust and later marries, the marriage revokes the will but does not in any way affect the trust. Chapman's Ex'r v. Chapman, 152 Ky. 344 , 153 S.W. 434, 1913 Ky. LEXIS 655 ( Ky. 1913 ) (decided under prior law).

5.— Antenuptial Contracts.

Where the man and woman enter into an antenuptial contract and the woman pursuant to that contract makes a will, and the contract, will, and marriage are so closely related so as to make the whole one transaction, the marriage does not revoke the will. Stewart v. Mulholland, 88 Ky. 38 , 10 S.W. 125, 10 Ky. L. Rptr. 824 , 1888 Ky. LEXIS 135 ( Ky. 1888 ) (decided under prior law).

Where man and woman enter into an antenuptial contract prior to marriage, and the man makes a will pursuant to that agreement, the marriage revokes the will. Stewart v. Powell, 90 Ky. 511 , 14 S.W. 496, 12 Ky. L. Rptr. 448 , 1890 Ky. LEXIS 116 ( Ky. 1890 ) (decided under prior law).

Where a man made his will and his wife died, and later he entered into an antenuptial contract with a woman to the effect that she should retain her property free of the marital obligations and he gave her a life interest in some of his property, then he died and the original will was offered for probate, the court held that the marriage revoked the will. Ransom v. Connelly, 93 Ky. 63 , 18 S.W. 1029, 14 Ky. L. Rptr. 73 , 1892 Ky. LEXIS 50 ( Ky. 1892 ) (decided under prior law).

Where a valid antenuptial contract has been entered into providing that neither of the parties is to share in the estate of the other, and the husband dies testate the wife could not appeal the probate order on the ground that the will was revoked by the marriage. Biggerstaff's Ex'rs v. Biggerstaff's Adm'r, 95 Ky. 154 , 23 S.W. 965, 15 Ky. L. Rptr. 725 , 1893 Ky. LEXIS 136 ( Ky. 1893 ) (decided under prior law).

Where testatrix executed her will and then married, the marriage revoked her will regardless of the fact that she and her intended husband entered into an antenuptial contract that neither party was to have any interest in the other’s estate before marriage. Clevenger v. Stewart, 215 Ky. 432 , 284 S.W. 1106, 1926 Ky. LEXIS 721 ( Ky. 1926 ) (decided under prior law).

6.— Will Made by Nonresident.

Where the testator was a resident of Ohio, made a will bequeathing personal property in Kentucky and then married, the will would not be revoked under Ohio law and the law of the testator’s domicile will control as to personal property. Barnes v. Graves, 259 Ky. 180 , 82 S.W.2d 297, 1935 Ky. LEXIS 290 ( Ky. 1935 ) (decided under prior law).

7.— Agreement to Probate.

Where the testatrix made her will and then married and the will was probated by agreement on the part of the heirs, the probation of the will cannot be collaterally attacked, but can only be attacked directly by appealing to the circuit court within five years. Howard v. Ramsey, 257 Ky. 704 , 78 S.W.2d 16, 1935 Ky. LEXIS 20 ( Ky. 1935 ) (decided under prior law).

8.— Application to Wills Executed After Marriage.

This section contemplates a will executed after marriage; otherwise, this section and KRS 394.092 could not be reconciled. Knott v. Garriott, 784 S.W.2d 603, 1989 Ky. App. LEXIS 156 (Ky. Ct. App. 1989) (decided under prior law).

9.Annulment of Marriage.

A marriage, subsequently annulled, will not serve to revoke a will under this section. Knott v. Garriott, 784 S.W.2d 603, 1989 Ky. App. LEXIS 156 (Ky. Ct. App. 1989) (decided under prior law).

Cited:

Hunt v. McCloud, 231 Ky. 801 , 22 S.W.2d 285, 1929 Ky. LEXIS 370 ( Ky. 1929 ); Griffith v. Lunney, 300 Ky. 66 , 187 S.W.2d 431 (1945); Murphy v. Henry, 311 Ky. 799 , 225 S.W.2d 662, 1949 Ky. LEXIS 1247 ( Ky. 1949 ).

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, 1991 Supp., Annulment of Marriage, § 10.13.

Petrilli, Kentucky Family Law, Personal Rights and Privileges Resulting from Marriage, § 12.5.

Petrilli, Kentucky Family Law, Status of Wife, § 11.2.

394.092. Effect of divorce or annulment of marriage of testator.

If after executing a will the testator is divorced or his marriage annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, conservator or guardian, unless the will expressly provides otherwise. Property prevented from passing to a former spouse because of revocation by divorce or annulment passes as if the former spouse failed to survive the decedent, and other provisions conferring some power or office on the former spouse are interpreted as if the spouse failed to survive the decedent. If provisions are revoked solely by this section, they are revived by the testator’s remarriage to the former spouse.

History. Enact. Acts 1982, ch. 361, § 1, effective July 15, 1982; 1990, ch. 450, § 4, effective July 13, 1990.

NOTES TO DECISIONS

1.Application to Wills Executed After Marriage.

This section contemplates a will executed after marriage; otherwise, KRS 394.090 and this section could not be reconciled. Knott v. Garriott, 784 S.W.2d 603, 1989 Ky. App. LEXIS 156 (Ky. Ct. App. 1989).

2.Legislative Intent.

In order to harmonize the July 15, 1982, effective date of this section with the repeal of former KRS 394.095 the Supreme Court of Kentucky held that the General Assembly intended the repealer of KRS 394.095 to apply only as to those wills executed after July 15, 1982, when this new section became controlling over them. Winebrenner v. Dorten, 825 S.W.2d 836, 1991 Ky. LEXIS 201 ( Ky. 1991 ).

3.Insurance.

A rule that divorce automatically revokes an insured’s choice of his former spouse as his insurance beneficiary unduly interferes with private contract rights and obligations; a divorced insured ordinarily retains the right to remove his former spouse as beneficiary any time after the decree. Hughes v. Scholl, 900 S.W.2d 606, 1995 Ky. LEXIS 82 ( Ky. 1995 ).

The rights of an insurance policy beneficiary, including the right to receive the policy’s proceeds upon the insured’s death, are not affected by the mere fact of a divorce between the beneficiary and the insured. Hughes v. Scholl, 900 S.W.2d 606, 1995 Ky. LEXIS 82 ( Ky. 1995 ).

Cited in:

Welsh v. Robison, 702 S.W.2d 455, 1986 Ky. App. LEXIS 1041 (Ky. Ct. App. 1986), overruled, Winebrenner v. Dorten, 825 S.W.2d 836, 1991 Ky. LEXIS 201 ( Ky. 1991 ); Sadler v. Van Buskirk, — S.W.3d —, 2013 Ky. App. LEXIS 159 (Ky. Ct. App. 2013).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Catron, Wills, Probate and Real Property Law, 71 Ky. L.J. 333 (1982-83).

Treatises

Treatises

Petrilli, Kentucky Family Law, Dissolution Decree, § 24.21.

Petrilli, Kentucky Family Law, Personal Rights and Privileges Resulting from Marriage, § 12.5; 1991 Supp., § 12.5.

394.095. Divorce revokes will — Exception. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 199, § 1; 1980, ch. 259, § 9, effective July 15, 1980) was repealed by Acts 1982, ch. 361, § 3, effective July 15, 1982.

394.100. Revoked will may be revived, how.

A will or codicil, or part thereof, that has been revoked shall be revived only by reexecution or by a codicil executed in the manner required for making a will, and then only to the extent to which an intention to revive is shown thereby.

History. 4834.

NOTES TO DECISIONS

1.Revival.

Where a contingent will becomes revoked by its own terms, it can be revived only by the execution of a new will and it cannot be revived by parol declarations. Maxwell v. Maxwell, 60 Ky. 101 , 1860 Ky. LEXIS 27 ( Ky. 1860 ) (decided under prior law). See Dougherty v. Dougherty, 61 Ky. 25 , 1862 Ky. LEXIS 7 ( Ky. 1862 ) (decided under prior law).

When a will is revoked with the intention of making another will, the failure to do so does not revive the revoked will. Youse v. Forman, 68 Ky. 337 , 1869 Ky. LEXIS 14 ( Ky. 1869 ) (decided under prior law).

The testator executed his will in which he gave property to designated persons and then he married. After his marriage he executed a second will, in which he referred to devises in his first will stating that he desired that they be good. Then he was divorced, and subsequent thereto wrote a third will, in which he revoked the devises in the second will to his then wife, referring to the whole will and stating that it was revoked. The court held that the first will was revived by the second will, and that the second will was not completely revoked by the third will. Spradlin v. Adams, 182 Ky. 716 , 207 S.W. 471, 1919 Ky. LEXIS 405 ( Ky. 1919 ).

A will which is contingent and is revoked by its own terms cannot be revived except in the manner provided in KRS 394.040 . Walker v. Hibbard, 185 Ky. 795 , 215 S.W. 800, 1919 Ky. LEXIS 379 ( Ky. 1919 ).

Where a will was conditional upon the death of the testatrix from a particular operation in the near future, the will was not revived by either evidence that during the time between the operation and her death she intended the will to be effective or by an unsigned and undated writing delivered to the custodian of the will requesting a certain type of marker be used for her. McCray v. Long, 303 S.W.2d 296, 1957 Ky. LEXIS 251 ( Ky. 1957 ).

Because KRS 394.090 governed the revocation of wills at the time the decedent executed his will and remarried, and that statute unambiguously provided that marriage revoked the will, the fact that the statute was revised in 1998 did not change the result; hence, as the decedent never revived that will which had been revoked by operation of law, said will was void. Conn v. Conn, 2005 Ky. App. LEXIS 199 (Ky. Ct. App. Sept. 16, 2005, sub. op., 2005 Ky. App. Unpub. LEXIS 732 (Ky. Ct. App. Sept. 16, 2005), review denied, ordered not published, 2006 Ky. LEXIS 64 (Ky. Mar. 15, 2006).

2.Re-execution.

The testator executed two holographic wills, one in October, 1900, and the other in January, 1901. Later he took the October will and had it witnessed by two witnesses. When he died both wills were offered for probate. It was held that his act of having the October will properly witnessed was a re-execution thereof, and that it should be probated. P'Pool's Ex'r v. P'Pool's Ex'x, 121 Ky. 588 , 89 S.W. 687, 28 Ky. L. Rptr. 539 , 1905 Ky. LEXIS 246 ( Ky. 1905 ).

3.Destruction of Revoking Will.

The destruction of a second will which revoked the first, will not revive the first will. Slaughter's Adm'r v. Wyman, 228 Ky. 226 , 14 S.W.2d 777, 1929 Ky. LEXIS 520 ( Ky. 1929 ). See Singleton v. Singleton, 269 Ky. 330 , 107 S.W.2d 273, 1937 Ky. LEXIS 606 ( Ky. 1937 ).

4.Codicil Added.

Where the testator made a devise to his son and his heirs and appointed the son executor, and the son died and the testator added a codicil in which he referred to the death of the son and appointed another to act as executor, the will was republished as of the date of the codicil, and the heirs of the son took under the will. Davis' Heirs v. Taul, 36 Ky. 51 , 1837 Ky. LEXIS 138 ( Ky. 1837 ) (decided under prior law).

Where the testator had a document drawn and intended to sign and publish it as his will, but never did so sign, attest, or publish it as his will but later properly executed a codicil thereto, both documents constitute the last will of the testator. Beall v. Cunningham, 42 Ky. 390 , 1843 Ky. LEXIS 33 ( Ky. 1843 ) (decided under prior law).

If a will is contingent, and after the event has happened a codicil is added thereto referring to the instrument as the will of the testator, both instruments constitute the will of the testator. Urey's Adm'r v. Urey's Ex'x, 86 Ky. 354 , 5 S.W. 859, 9 Ky. L. Rptr. 596 , 1887 Ky. LEXIS 141 ( Ky. 1887 ).

The execution of a codicil to a will republishes the will as of the date of the codicil. Hence, a verdict of the jury that finds for a codicil and against the will to which it was added, is an inconsistent verdict and cannot stand. Farmers' Bank & Trust Co. v. Harding, 209 Ky. 3 , 272 S.W. 3, 1925 Ky. LEXIS 412 ( Ky. 1925 ).

Cited:

Sleet v. Atwood, 186 Ky. 241 , 216 S.W. 352, 1919 Ky. LEXIS 178 ( Ky. 1919 ); Knott v. Garriott, 784 S.W.2d 603, 1989 Ky. App. LEXIS 156 (Ky. Ct. App. 1989).

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, 1991 Supp., Personal Rights and Privileges Resulting from Marriage, § 12.5.

394.110. Will may be deposited with clerk for safekeeping. [Repealed]

History. 4865: amend. Acts 1976 (Ex. Sess.), ch. 14, § 354, effective January 2, 1978; 1978, ch. 84, § 23, effective June 17, 1978; repealed by 2019 ch. 99, § 1, effective June 27, 2019.

394.120. Validity of nonresident’s will.

The will of a person domiciled out of this state at the time of his death shall be valid as to his personal property and his real property in this state, if it is executed according to the law of the place where he was domiciled.

History. 4831: amend. Acts 1972, ch. 168, § 9.

NOTES TO DECISIONS

1.In General.

Will probated in a foreign jurisdiction is valid in Kentucky to the same extent that it has been proven in the foreign jurisdiction and where there has been no adjudication of the underlying validity of the will in the foreign jurisdiction, the issue may be raised in Kentucky pursuant to KRS 394.240 . Marr v. Hendrix, 952 S.W.2d 693, 1997 Ky. LEXIS 116 ( Ky. 1997 ).

2.Final judgment.

Kentucky courts possess jurisdiction to entertain a final judgment determining a foreign will tendered for ancillary probate in Kentucky to the extent that the will disposes of real property located in Kentucky, provided that there has been no action contesting the validity of the will in a foreign jurisdiction. Marr v. Hendrix, 952 S.W.2d 693, 1997 Ky. LEXIS 116 ( Ky. 1997 ).

394.130. Will not admissible as evidence until probated — Effect of probate.

No will shall be received in evidence until it has been allowed and admitted to record by a District Court; and its probate before such court shall be conclusive, except as to the jurisdiction of the court, until superseded, reversed or annulled.

History. 4852: amend. Acts 1976 (Ex. Sess.), ch. 14, § 355, effective January 2, 1978.

NOTES TO DECISIONS

1.Application.

This section is applicable to foreign will probated in Kentucky as a will covering realty located in this state. Whalen v. Nisbet, 95 Ky. 464 , 26 S.W. 188, 16 Ky. L. Rptr. 52 , 1894 Ky. LEXIS 52 ( Ky. 1894 ).

This section is applicable only to the situation in which the paper is offered in testimony as a will. It is not applicable where a prior will is offered in testimony to prove a collateral point. Trivette v. Johnson, 257 Ky. 681 , 79 S.W.2d 6, 1935 Ky. LEXIS 78 ( Ky. 1935 ).

2.Probate Conclusive.

An order of the court admitting a will to probate is valid as to all the world, until set aside according to law. Moore v. Tanner's Adm'r, 21 Ky. 42 , 1827 Ky. LEXIS 99 ( Ky. 1827 ) (decided under prior law).

Where a will has been properly probated in court upon the evidence of one or more witnesses, the validity cannot be collaterally attacked when it is introduced in evidence in an action to try title to land. Stevenson v. Huddleson, 52 Ky. 299 , 1852 Ky. LEXIS 33 ( Ky. 1852 ) (decided under prior law).

To make valid probate of a will the court must find that the deceased was a resident and its finding until superseded, reversed, or annulled is conclusive as to everything except its jurisdiction. Hite's Adm'r v. Gibson, 251 Ky. 651 , 65 S.W.2d 731, 1933 Ky. LEXIS 929 ( Ky. 1933 ).

Statutes pertaining to probate and contest of wills are complete and exclusive and a judgment of probate in a court having jurisdiction is conclusive unless set aside on appeal to the Circuit Court or by such other method of direct attack as may be expressly authorized. Payne v. Chenault, 343 S.W.2d 129, 1960 Ky. LEXIS 102 ( Ky. 1960 ).

3.— Improper Venue.

Where the will is probated in a county which was not the residence of the testator at the time of his death, the order of the court probating the will is void and can be attacked either directly or collaterally. Ewing v. Ewing, 255 Ky. 27 , 72 S.W.2d 712, 1934 Ky. LEXIS 171 ( Ky. 1934 ). See Johnson v. Harvey, 261 Ky. 522 , 88 S.W.2d 42, 1935 Ky. LEXIS 691 ( Ky. 1935 ).

4.— Later Codicil.

Where the will has been probated and disposes of entire estate, a codicil to will submitted for probate two years later and making an entirely different disposition of a substantial part of the testator’s estate may not be probated; the court has no jurisdiction as the probate of the will is conclusive. Couchman v. Couchman, 104 Ky. 680 , 47 S.W. 858, 20 Ky. L. Rptr. 871 , 1898 Ky. LEXIS 212 ( Ky. 1898 ).

5.— Earlier Wills Offered.

Where will of November, 1957 had already been probated when will and codicil of January, 1953 and August, 1957, respectively were first offered the actions of both the County (now District) and Circuit Court in declining to admit them were proper. Payne v. Chenault, 343 S.W.2d 129, 1960 Ky. LEXIS 102 ( Ky. 1960 ).

6.— Sale of Land.

Where a will giving executors power to sell and convey land is probated and the executors qualify they will be able to give good title even when the time for appeal of the order of probate has not expired. Reed v. Reed, 91 Ky. 267 , 15 S.W. 525, 12 Ky. L. Rptr. 867 , 1891 Ky. LEXIS 35 ( Ky. 1891 ).

7.— Foreign Will.

When a foreign will has been probated by the County (now District) Court in Kentucky it is conclusive, and question as to the attestation by the clerk, with the seal of the court, in the foreign jurisdiction cannot be raised in a collateral proceeding. Houser v. Paducah Lands Co., 157 Ky. 252 , 162 S.W. 1113, 1914 Ky. LEXIS 260 ( Ky. 1914 ).

8.Sufficiency of Probate.

The mere hearing of proof by the court is not sufficient to probate a will. The instrument must be allowed and admitted to record. The recital by the clerk that the will has been recorded does not establish that it was ever admitted to probate. Howard v. Howard, 268 Ky. 552 , 105 S.W.2d 630, 1937 Ky. LEXIS 504 ( Ky. 1937 ).

9.Writings Not Probated.

In an action to recover for services rendered to the decedent during his lifetime, under a contract with him, a paper in the nature of a will may be admitted in evidence without first being probated to show, however slight, that the services were performed pursuant to a contract with the decedent. Thomas v. Arthur, 70 Ky. 245 , 1870 Ky. LEXIS 43 ( Ky. 1870 ) (decided under prior law). See Montgomery's Adm'r v. Miller, 43 Ky. 470 , 1844 Ky. LEXIS 30 ( Ky. 1844 ) (decided under prior law).

Where the testator refers to a paper and clearly identifies it, the paper may be admitted in evidence even though it was not probated as a part of the will. Tuttle v. Berryman, 94 Ky. 553 , 23 S.W. 345, 15 Ky. L. Rptr. 294 , 1893 Ky. LEXIS 94 ( Ky. 1893 ).

Where the testator refers to deeds to be executed, the reference is not sufficiently definite to admit a memorandum made at the time the will was executed. Tuttle v. Berryman, 94 Ky. 553 , 23 S.W. 345, 15 Ky. L. Rptr. 294 , 1893 Ky. LEXIS 94 ( Ky. 1893 ).

In a suit to recover upon a contract for services rendered the deceased, a will drawn by the deceased in which she gave substantial property to the plaintiff may be introduced in evidence to establish the oral contract, even though the will has been revoked by a subsequent will and not probated. Mussinon's Adm'r v. Herrin, 252 Ky. 495 , 67 S.W.2d 710, 1934 Ky. LEXIS 812 ( Ky. 1934 ).

It was not prejudicial error to admit in evidence verbatim copy of will written by testatrix number of years previously whereby her property was disposed of substantially as by will in controversy, notwithstanding it was not shown to have been duly executed, since it was relevant to show fixed intention respecting disposition of property. Martin v. Combs, 284 Ky. 530 , 145 S.W.2d 108, 1940 Ky. LEXIS 536 ( Ky. 1940 ).

Where certain writings were represented to be the last will of deceased in suit to divide property, they were not admissible in evidence as a will since they had not been probated. Panke v. Panke, 252 S.W.2d 909, 1952 Ky. LEXIS 1044 ( Ky. 1952 ).

10.Probated in Foreign State.

Where will of a resident of Kentucky has been probated in Ohio, the will is not admissible in evidence where the alleged will is pleaded as evidence of the debt sued upon. Riggs v. Rankins' Ex'r, 268 Ky. 390 , 105 S.W.2d 167, 1937 Ky. LEXIS 481 ( Ky. 1937 ).

11.Use as Evidence.

Where a will has been duly admitted to probate it may be received in evidence in a suit alleging a breach of contract to convey property, even though it was witnessed by one to whom the principal devise is made and the purpose of the will is defeated by the void devise. Skinner v. Rasche, 165 Ky. 108 , 176 S.W. 942, 1915 Ky. LEXIS 477 ( Ky. 1915 ).

Contention that 1962 joint will was improperly considered as evidence since it was not probated pursuant to this section had no merit since plaintiffs had admitted that the 1962 will was admitted to probate and recorded in 1978. Mansfield v. Voedisch, 672 S.W.2d 678, 1984 Ky. App. LEXIS 543 (Ky. Ct. App. 1984).

12.Jurisdiction.

The order of the County (now District) Court in admitting a will to probate is not conclusive as to the jurisdiction of the county court. Such an order will be treated as void if it appears that the county court had no jurisdiction to admit the will to probate. Master v. Brinker, 87 Ky. 1 , 7 S.W. 158, 9 Ky. L. Rptr. 841 (1888). See Miller v. Swan, 91 Ky. 36 , 14 S.W. 964, 12 Ky. L. Rptr. 629 , 1890 Ky. LEXIS 152 ( Ky. 1 890 ).

This section gives exclusive jurisdiction to the County (now District) Court to determine whether an instrument purporting to be a will complies with the legal requirements of probate and its determination of the validity of a will cannot be attacked in collateral proceedings. Rogers v. Leahy, 296 Ky. 44 , 176 S.W.2d 93, 1943 Ky. LEXIS 97 ( Ky. 1943 ).

On admission of a will to probate a County (now District) Court may determine its own jurisdiction, subject to either direct or collateral attack. Schmitt v. Kentucky Trust Co., 429 S.W.2d 839, 1968 Ky. LEXIS 756 ( Ky. 1968 ).

Cited:

Hensley v. O’Forest, 313 Ky. 789 , 233 S.W.2d 996, 1950 Ky. LEXIS 994 ( Ky. 1950 ); Gordon v. Holly Woods Acres, Inc., 328 F.2d 253, 1964 U.S. App. LEXIS 6191, 27 Ohio Op. 2d 188 (6th Cir. 1964).

Opinions of Attorney General.

Whether a will is that of nonresident of Kentucky mailed to a county clerk in this state from out-of-state, or the will of a resident so mailed, before it may be “recorded” by a county clerk in this state, it must be “admitted to record” (probated) in a District Court of this state. OAG 94-48 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint in Circuit Court to Contest Will for Undue Influence, Form 230.24.

394.140. Will probated in District Court — Venue.

Wills shall be proved before, and admitted to record by, the District Court of the testator’s residence (if such residence was on a United States Army post, military reservation or fort, it may be proved and admitted to record in the District Court of any county adjacent thereto); if he had no known place of residence in this state, and land is devised, then in the county where the land or part thereof lies; if no land is devised, then in the county where he died, or where his estate or part thereof is, or where there is a debt or demand owing to him.

History. 4849: amend. Acts 1964, ch. 156; 1976 (Ex. Sess.), ch. 14, § 356, effective January 2, 1978.

NOTES TO DECISIONS

1.Residence.

The “place of residence” means legal residence or domicile, as contradistinguished from “actual residence,” that is where the decedent may be temporarily abiding at the time of his demise. Burr's Adm'r v. Hatter, 240 Ky. 721 , 43 S.W.2d 26, 1931 Ky. LEXIS 497 ( Ky. 1931 ). See Hite's Adm'r v. Hite's Ex'r, 265 Ky. 786 , 97 S.W.2d 811, 1936 Ky. LEXIS 578 ( Ky. 1936 ).

The fact that the deceased died in another state is immaterial. If he was domiciled in a county in this state, the county (now district) court of that county has jurisdiction to appoint an administrator of his estate. Phillips' Committee v. Ward's Adm'r, 241 Ky. 25 , 43 S.W.2d 331, 1931 Ky. LEXIS 11 ( Ky. 1931 ).

As used in this section the term “residence” means domicile as a residence indicates a temporary living place while domicile indicates a permanent living place. Johnson v. Harvey, 261 Ky. 522 , 88 S.W.2d 42, 1935 Ky. LEXIS 691 ( Ky. 1935 ).

The county of domicile has jurisdiction of probate proceedings. Ellison v. Smoot's Adm'r, 286 Ky. 768 , 151 S.W.2d 1017, 1941 Ky. LEXIS 331 ( Ky. 1941 ).

When the mother of a disabled child sued the estate of the child’s father regarding various statutory violations in the handling of the estate which allegedly resulted in denying the child the opportunity to present a child support claim against the estate, it was a statutory violation to probate the estate in a county other than the county of the decedent’s residence because KRS 394.140 allowed for no exceptions to filing a motion for admission to probate of an estate in the county of the decedent’s residence. Thompson v. Porter, 2012 Ky. App. LEXIS 248 (Ky. Ct. App. Nov. 30, 2012), op. withdrawn, sub. op., 2013 Ky. App. Unpub. LEXIS 418 (Ky. Ct. App. May 24, 2013).

2.— Jurisdiction of District Court.

Upon death of a resident, the county (now District) Court of the county of his residence at the time of his death has exclusive jurisdiction to grant administration. Jewel Tea Co. v. Walker's Adm'r, 290 Ky. 328 , 161 S.W.2d 66, 1942 Ky. LEXIS 400 ( Ky. 1942 ).

Appointment of an administrator by the county (now District) Court of a county other than that of a decedent’s residence is void. Jewel Tea Co. v. Walker's Adm'r, 290 Ky. 328 , 161 S.W.2d 66, 1942 Ky. LEXIS 400 ( Ky. 1942 ).

In this state the county (now District) Court of the testator’s residence is given the original and exclusive jurisdiction to probate wills by this section. Allen v. Lovell's Adm'x, 303 Ky. 238 , 197 S.W.2d 424, 1946 Ky. LEXIS 833 ( Ky. 1946 ).

All county (now District) Courts in Kentucky have jurisdiction of the general subject of appointment of administrators of decedents’ estates, but the jurisdiction of a particular county court to appoint an administrator for a particular estate depends upon the fact of residence of the decedent within the county. Collins v. Duff, 283 S.W.2d 179, 1955 Ky. LEXIS 286 ( Ky. 1955 ).

Since the county (now District) Court has exclusive jurisdiction of the probate of wills, a Circuit Court has no power to order the probate of a will other than one probated or rejected by the county court and therefore may consider on appeal only the question of whether the will probated or rejected by the county court was the will of the testator. Shoup v. Ketron, 528 S.W.2d 731, 1975 Ky. LEXIS 90 ( Ky. 1975 ).

3.— Insane Person.

Where a person lived in a county and was adjudged insane and confined in an insane asylum and never lived in that county again, the presumption is, in the absence of a showing that she was thereafter restored by a verdict of a jury, that she did not have sufficient mental capacity to change her county of residence and that it remained in the county where she lived prior to being adjudged insane. Bartlett v. Buckner's Adm'r, 265 Ky. 747 , 97 S.W.2d 805, 1936 Ky. LEXIS 576 ( Ky. 1936 ).

4.— Representations by Heir.

Where an heir joins in an application for the appointment of an administrator in a county (now District) Court and the appointment is made, the heir has made a binding representation that the decedent was resident in that county and a subsequent appointment in another county on the application of that heir is void and the subsequent administrator may properly be enjoined from acting by the first court. Collins v. Duff, 283 S.W.2d 179, 1955 Ky. LEXIS 286 ( Ky. 1955 ).

5.Nonresident.
6.— Appointment of Administrator.

Motion for directed verdict in action for death of nonresident raises question whether plaintiff administrator was appointed by the proper county (now District) Court and has right to maintain action. Jewel Tea Co. v. Walker's Adm'r, 290 Ky. 328 , 161 S.W.2d 66, 1942 Ky. LEXIS 400 ( Ky. 1942 ).

Upon death of a nonresident as a result of personal injury received in this state when the only property in this state is the right of action for death, the county (now District) Court of the county wherein such injury was received has jurisdiction to grant administration. Jewel Tea Co. v. Walker's Adm'r, 290 Ky. 328 , 161 S.W.2d 66, 1942 Ky. LEXIS 400 ( Ky. 1942 ).

7.— Wrongful Death Action.

In the case of a nonresident of Kentucky who is killed in another state and who at the time of his death owns no property in Kentucky, letters of administration may be obtained in Kentucky for the singular purpose of maintaining a wrongful death action. Bankemper v. Boone County Aviation, Inc., 435 S.W.2d 58, 1968 Ky. LEXIS 191 ( Ky. 1968 ).

8.Duty of Court to Probate.

If a paper is shown upon probate proceedings to have been executed according to law of wills, it is the duty of the county (now District) Court to admit it to probate. The court has no power in such a proceeding to construe the will to determine the validity of the devises therein. Leak's Heirs v. Leak's Ex'rs, 73 S.W. 789, 24 Ky. L. Rptr. 2217 (1903).

9.Conclusive Judgment.

Probate of a will, had in the proper county, is conclusive when not superseded, reversed or annulled. Otherwise, the order may be questioned collaterally. Ellison v. Smoot's Adm'r, 286 Ky. 768 , 151 S.W.2d 1017, 1941 Ky. LEXIS 331 ( Ky. 1941 ).

Cited:

Riggs v. Rankins’ Ex’r, 268 Ky. 390 , 105 S.W.2d 167, 1937 Ky. LEXIS 481 ( Ky. 1937 ); Hensley v. O’Forest, 313 Ky. 789 , 233 S.W.2d 996, 1950 Ky. LEXIS 994 ( Ky. 1950 ); Gordon v. Holly Woods Acres, Inc., 328 F.2d 253, 1964 U.S. App. LEXIS 6191, 27 Ohio Op. 2d 188 (6th Cir. 1964); Whisler v. Allen, 380 S.W.2d 70, 1964 Ky. LEXIS 264 ( Ky. 1964 ); Schmitt v. Kentucky Trust Co., 429 S.W.2d 839, 1968 Ky. LEXIS 756 ( Ky. 1968 ).

Opinions of Attorney General.

Where a will is properly probated in the county of the testator’s residence it can be recorded only in that county. OAG 69-563 .

Research References and Practice Aids

Cross-References.

Administrator, jurisdiction to appoint, KRS 395.030 .

Jurisdiction of action to establish or set aside will, KRS 452.410 .

Kentucky Law Journal.

Leathers, Rethinking Jurisdiction and Notice in Kentucky, 71 Ky. L.J. 755 (1982-83).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Order Probating Will (AOC 806), Form 230.02.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Probate of Will or Appointment of Administrator/Executor of Estate (AOC 805), Form 230.01.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Probate Procedures Dispensing with Administration, § 232.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Probate Procedures Testate and Intestate, § 233.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Venue and Change of Venue, § 38.00.

394.145. Application for probate of will.

When any will is offered for probate, the court shall require a verified application to be filed by the person offering the same. Such application shall state the residence of the testator at the time of his death and such other facts as may be necessary to establish the jurisdiction of the court, and the names, ages and post office addresses of the testator’s surviving spouse and, if required by the court, heirs at law, or such as are known. An application for probate and for appointment as executor or administrator with the will annexed may be combined in one (1) application.

History. Enact. Acts 1942, ch. 167, § 6; 1968, ch. 200, § 6; 1972, ch. 168, § 10; 1976 (Ex. Sess.), ch. 14, § 357, effective January 2, 1978.

NOTES TO DECISIONS

1.Notice to Interested Parties.

Notice to all interested parties is not essential to give court jurisdiction of application to probate or set aside probate of a will. Miller v. Hill, 293 Ky. 242 , 168 S.W.2d 769, 1943 Ky. LEXIS 600 ( Ky. 1943 ).

When the mother of a disabled child sued the estate of the child’s father regarding various statutory violations in the handling of the estate which allegedly resulted in denying the child the opportunity to present a child support claim against the estate, the notice provisions of KRS 394.145 were violated because no notice was given to the child, despite knowledge of the child’s existence. Thompson v. Porter, 2012 Ky. App. LEXIS 248 (Ky. Ct. App. Nov. 30, 2012), op. withdrawn, sub. op., 2013 Ky. App. Unpub. LEXIS 418 (Ky. Ct. App. May 24, 2013).

2.Jurisdiction.

Court of appeals erred in concluding that the trial court lacked jurisdiction over the probate matter due to an alleged defect with verification of the probate petition because the lack of proper verification of the probate petition did not divest the trial court of subject-matter jurisdiction to entertain the petition to probate the will. McGaha v. McGaha, 2022 Ky. LEXIS 288 (Ky. Sept. 22, 2022).

Opinions of Attorney General.

Under this section the fee is intended to cover the executor appointment situation and will probation as one transaction. OAG 71-232 .

Research References and Practice Aids

Cross-References.

Notice of application, hearing, KRS 395.016 .

Kentucky Bench & Bar.

Ratliff, Kentucky Probate — A Simple Overview, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 16.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Order Probating Will (AOC 806), Form 230.02.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Probate of Will or Appointment of Administrator/Executor of Estate (AOC 805), Form 230.01.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Probate Procedures Testate and Intestate, § 233.00.

394.150. Probate of nonresident’s will.

When a will of a nonresident has been proved out of the state, an authenticated copy and the certificate of probate may be offered for probate in this state. When such copy is offered the court shall presume, in the absence of evidence to the contrary, that the will was duly executed and admitted to probate as a will in the state or country of the testator’s domicile, and shall admit the copy to probate as a will in this state.

History. 4854: amend. Acts 1972, ch. 168, § 11.

NOTES TO DECISIONS

1.Application.

This section is only applicable to the wills of nonresidents. Green v. Moore, 206 Ky. 724 , 268 S.W. 337, 1925 Ky. LEXIS 1027 ( Ky. 1925 ).

2.Probated in Foreign State.

Where will was probated in Mississippi on April 25, 1850, and a copy thereof with the proper record was presented to the probate court in Kentucky on December 18, 1897, to perfect a chain of title, it could be probated since none of the heirs, creditors, or devisees objected. Johnson v. Bard, 54 S.W. 721, 31 Ky. L. Rptr. 999 , 1900 Ky. LEXIS 385 (Ky. Ct. App. 1900).

Where the will was admitted to probate in Texas upon the testimony of one of the witnesses who testified as to the proper execution and signing of the will by another witness and himself, the will is entitled to be probated in Kentucky. Grausz v. Conley, 253 Ky. 340 , 69 S.W.2d 695, 1934 Ky. LEXIS 660 ( Ky. 1934 ).

3.— Will Partially Invalid.

Where order of a Florida court, admitting a holographic will to probate, recited that the instrument presented as the last will of deceased was established and proven by oral testimony and affidavits, contestants could not object to the ancillary probate of an authenticated copy of will in Kentucky court for purpose of disposing of Kentucky real estate, even though will was only valid as to personalty in Florida, because of improper execution. Gourley v. Miller, 302 Ky. 759 , 196 S.W.2d 360, 1946 Ky. LEXIS 745 ( Ky. 1946 ).

4.— Statute of Limitations.

Where a will of a nonresident is submitted for ancillary probate in this state after having been admitted to probate in the state of testator’s residence it is not subject to attack on the basis of the 10-year statute of limitations. Morrison v. Fletcher, 119 Ky. 488 , 84 S.W. 548, 27 Ky. L. Rptr. 124 , 1905 Ky. LEXIS 24 ( Ky. 1905 ).

The will of the testator was probated in Tennessee, and 48 years later it was offered to probate in Kentucky. The offer in Kentucky was too late and the statute of limitations (KRS 413.160 ) had run and cut off the right to probate in Kentucky. Foster v. Jordan, 130 Ky. 445 , 113 S.W. 490, 1908 Ky. LEXIS 290 ( Ky. 1908 ).

A judgment admitting a will to ancillary probate may not be collaterally attacked on the ground that it was void under the statute of limitations because such a limitations defense must be pleaded in an original action. Hoagland v. Fish, 238 S.W.2d 133, 1951 Ky. LEXIS 799 ( Ky. 1951 ).

5.— Sale of Local Realty.

Where authenticated copy of will of nonresident was admitted to probate in this state, trustees named in will could sell real estate located in this state under power of sale given them by the will. Penn v. Pennsylvania Co. for Ins., etc., 294 Ky. 271 , 171 S.W.2d 437, 1943 Ky. LEXIS 431 ( Ky. 1943 ).

6.Action Pending in Foreign State.

Where action was pending in Ohio for construction of will of Ohio resident, an action brought in Kentucky for the same purpose should be continued to await the construction by the Ohio court, or at least for a time reasonably sufficient to enable the Ohio court to make a construction. Dotson's Adm'r v. Ferrell, 293 Ky. 470 , 169 S.W.2d 320, 1942 Ky. LEXIS 10 ( Ky. 1942 ).

7.Jurisdiction.

Where the will of a nonresident attempted to dispose of real estate situated in Kentucky, the will should be admitted to probate in the Kentucky county in which the real estate is located with the appointment of an ancillary administrator in that county. Second Nat'l Bank v. Thomson, 455 S.W.2d 51, 1970 Ky. LEXIS 240 ( Ky. 1970 ) (decision prior to 1972 amendment).

8.Revocation by Divorce.

Even though will of nonresident had been executed in such a manner to meet Kentucky requirements for execution, since it was revoked under KRS 394.095 (repealed) by reason of testator’s divorce it could not be probated in Kentucky so as to pass title to real estate located in Kentucky. Cox v. Harrison, 535 S.W.2d 78, 1975 Ky. LEXIS 9 ( Ky. 1975 ).

9.Final judgment.

Kentucky courts possess jurisdiction to entertain a final judgment determining a foreign will tendered for ancillary probate in Kentucky to the extent that the will disposes of real property located in Kentucky, provided that there has been no action contesting the validity of the will in a foreign jurisdiction. Marr v. Hendrix, 952 S.W.2d 693, 1997 Ky. LEXIS 116 ( Ky. 1997 ).

Cited:

Houser v. Paducah Lands Co., 157 Ky. 252 , 162 S.W. 1113, 1914 Ky. LEXIS 260 ( Ky. 1914 ).

Opinions of Attorney General.

Whether a will is that of nonresident of Kentucky mailed to a county clerk in this state from out-of-state, or the will of a resident so mailed, before it may be “recorded” by a county clerk in this state, it must be “admitted to record” (probated) in a District Court of this state. OAG 94-48 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Venue and Change of Venue, § 38.00.

394.160. Court may compel production of a will.

Any District Court, on being informed that a person has in his custody the will of a testator, may summon him, and, by proper process, compel him to produce it.

History. 4853: amend. Acts 1976 (Ex. Sess.), ch. 14, § 358, effective January 2, 1978.

NOTES TO DECISIONS

1.Duty to Produce Will.

It is the duty of one to produce a will that he or she has in possession. Therefore, where the wife produces the deceased husband’s will in the county court for probate, she is not estopped to contest the will so produced. Howard v. Howard, 268 Ky. 552 , 105 S.W.2d 630, 1937 Ky. LEXIS 504 ( Ky. 1937 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Ratliff, Kentucky Probate — A Simple Overview, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 16.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Rule to Produce Will for Probate, Form 230.20.

394.170. Propounder of will may have interested parties summoned.

A person offering or intending to offer to a District Court a will for probate may obtain from the clerk of the court process directed to the proper officer of any county, requiring him to summon any person interested in the probate to appear and show cause why the will should not be admitted to record.

History. 4856: amend. Acts 1976 (Ex. Sess.), ch. 14, § 359, effective January 2, 1978.

NOTES TO DECISIONS

1.Person Interested.

A purchaser from an heir of a testator is a “person interested,” and may resist the probating of the will of the testator. Davies v. Leete, 111 Ky. 659 , 64 S.W. 441, 23 Ky. L. Rptr. 899 , 1901 Ky. LEXIS 228 ( Ky. 1901 ). See Foster v. Jordan, 130 Ky. 445 , 113 S.W. 490, 1908 Ky. LEXIS 290 ( Ky. 1908 ).

2.Summons.

It is optional with the persons offering a will for probate, and the court in which it is offered, whether or not the parties in interest shall be summoned to appear in the court in which the paper is offered for probate. Maynard v. Hatcher, 107 S.W. 241, 32 Ky. L. Rptr. 720 (1908).

3.— Limitations.

Where a will was offered for probate in 1881 and no summons issued against the parties interested and nothing was done until 1903, the statute of limitations had run. The action is commenced by having summons issued for the party or parties in interest and not by having a summons issued for a witness to the will. Mullins v. Fidelity & Deposit Co., 100 S.W. 256, 30 Ky. L. Rptr. 1077 , 1907 Ky. LEXIS 394 (Ky. Ct. App. 1907).

4.Notice.

Notice to all interested parties is not essential to give court jurisdiction of application to probate or set aside probate of a will. Miller v. Hill, 293 Ky. 242 , 168 S.W.2d 769, 1943 Ky. LEXIS 600 ( Ky. 1943 ).

5.Nature of Action.

A proceeding for the probate of a will is in rem, though the statutory provisions for notice to interested parties give it the character of an action inter partes. Schmitt v. Kentucky Trust Co., 429 S.W.2d 839, 1968 Ky. LEXIS 756 ( Ky. 1968 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Ratliff, Kentucky Probate — A Simple Overview, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 16.

Kentucky Law Journal.

Leathers, Rethinking Jurisdiction and Notice in Kentucky, 71 Ky. L.J. 755 (1982-83).

394.180. Court may order interested parties summoned.

The court to which a will is offered for probate may cause all persons interested in the probate to be summoned to appear on a certain day.

History. 4857.

NOTES TO DECISIONS

1.Persons Interested.

Creditors of an heir are “persons interested” under this section and KRS 394.170 , and may contest the probation of the will of the ancestor. Mullins v. Fidelity & Deposit Co., 100 S.W. 256, 30 Ky. L. Rptr. 1077 , 1907 Ky. LEXIS 394 (Ky. Ct. App. 1907).

2.In Rem Proceeding.

A proceeding for the probate of a will is in rem, though the statutory provisions for notice to interested parties give it the character of an action inter partes. Schmitt v. Kentucky Trust Co., 429 S.W.2d 839, 1968 Ky. LEXIS 756 ( Ky. 1968 ).

3.Conclusive Judgment.

A judgment of the probate court is conclusive whether the form of probate was ex parte or inter partes. Security Trust Co. v. Swope, 274 Ky. 99 , 118 S.W.2d 200, 1938 Ky. LEXIS 240 ( Ky. 1938 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Ratliff, Kentucky Probate — A Simple Overview, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 16.

Kentucky Law Journal.

Leathers, Rethinking Jurisdiction and Notice in Kentucky, 71 Ky. L.J. 755 (1982-83).

394.190. Summons or warning order — Persons under disability.

Any person interested in such probate may be summoned, or proceeded against by warning order, and if an infant or mentally disabled person, a guardian ad litem shall be appointed.

History. 4858: amend. Acts 1982, ch. 141, § 104, effective July 1, 1982.

Compiler’s Notes.

This section was amended by § 118 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

NOTES TO DECISIONS

1.Lack of Parties.

Where no guardian was appointed for minor contestees, minors were not before court, and where warning order attorney appointed for nonresident contestees failed to file a report, nonresidents were not before the court, so that judgment setting aside the will was required to be reversed for lack of parties. McComas v. Hull, 274 Ky. 192 , 118 S.W.2d 540, 1938 Ky. LEXIS 250 ( Ky. 1938 ).

Research References and Practice Aids

Kentucky Law Journal.

Leathers, Rethinking Jurisdiction and Notice in Kentucky, 71 Ky. L.J. 755 (1982-83).

Bratt, Kentucky’s Doctrine of Advancements: A Time for Reform, 75 Ky. L.J. 341 (1986-87).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Rule to Produce Will for Probate, Form 230.20.

Petrilli, Kentucky Family Law, Minors, § 30.22.

394.200. Creditors and executors are competent witnesses.

  1. If a will charging any estate with debts is attested by a creditor, or the wife or husband of a creditor, whose debt is so charged, the creditor shall be a competent witness for or against the will.
  2. No person shall, on account of his being an executor of a will, be incompetent as a witness for or against the will.

History. 4837, 4838.

NOTES TO DECISIONS

1.Attorney for Administrator.

An attorney for the administrator of a will is a competent witness. Cook v. Brown, 346 S.W.2d 725, 1960 Ky. LEXIS 11 ( Ky. 1960 ).

2.Executor.

An executor may testify in a lost will case regarding conversations and contacts with the decedent about the will. This testimony is proper under this section. It is not precluded by the Dead Man Statute, KRS 421.210(2) (now repealed, see KRE, Rules 501 to 511.) Rone v. Blankenship, 692 S.W.2d 632, 1985 Ky. LEXIS 244 ( Ky. 1985 ).

3.— Scope of Subsection (2).

Subsection (2) of this section does not presuppose the existence of an executed document which needs only to be admitted to probate. There is no such limiting language in the statute as written. Rone v. Blankenship, 692 S.W.2d 632, 1985 Ky. LEXIS 244 ( Ky. 1985 ).

394.210. Attesting witness — Effect of subsequent incompetency of or devise to.

  1. If any person who attests the execution of a will shall, after its execution, become incompetent to be admitted as a witness to prove its execution, the will shall not, on that account, be invalid.
  2. If a will is attested by a person to whom, or to whose wife or husband, any beneficial interest in the estate is devised or bequeathed, and the will cannot otherwise be proved, such person shall be deemed a competent witness; but such devise or bequest shall be void, unless such witness would be entitled to a share of the estate of the testator if the will were not established, in which case he shall receive so much of his share as does not exceed the value of that devised or bequeathed.
  3. A will may be proved by the testimony of one (1) of the subscribing witnesses without regard to the availability or competency of the other witnesses, provided said will was acknowledged or subscribed by the testator in the presence of two (2) witnesses at the same time.

History. 4836: amend. Acts 1972, ch. 168, § 12.

NOTES TO DECISIONS

1.Construction.

This section presupposes the existence of an executed instrument at the time of the testator’s death which needs only to be shown to have been duly attested in the manner prescribed by KRS 394.040 when offered for probate. Callihan v. Luster, 305 S.W.2d 530, 1957 Ky. LEXIS 320 ( Ky. 1957 ).

2.Beneficiary Witness.

A witness to whose wife a devise was made in the will is a competent witness to prove the will. Floore v. Green, 83 S.W. 133, 26 Ky. L. Rptr. 1073 (1904).

3.— Both Witnesses Testify.

Where the sole devisee, in a will is a witness thereto, and he and the other witness both testify in the proceedings to probate the will, the devise is not forfeited because the will could be otherwise proved. Calvert v. Calvert, 208 Ky. 760 , 271 S.W. 1082, 1925 Ky. LEXIS 386 ( Ky. 1925 ).

4.— Forfeiture of Devise.

It is only where the testimony of a witness to whom a devise or bequest has been made in the will becomes necessary to prove the will, that the devise or bequest to such witness is void. Doyle v. Brady, 170 Ky. 316 , 185 S.W. 1133, 1916 Ky. LEXIS 61 ( Ky. 1916 ).

5.— Copy of Lost Will.

Where attesting witnesses to a writing are also beneficiaries by its terms, their testimony is not admissible to establish the writing as a copy of an allegedly lost will of the maker of the writing. Callihan v. Luster, 305 S.W.2d 530, 1957 Ky. LEXIS 320 ( Ky. 1957 ).

6.— Officer of Trust Company.

An officer of a trust company appointed executor of a will is a competent witness to the will and would also be competent, if the trust company was actually a beneficiary under the will. Waggener v. General Asso. of Baptists, 306 S.W.2d 271, 1957 Ky. LEXIS 31 ( Ky. 1957 ).

7.— Holographic Will.

If a devisee witnesses a holographic will he does not forfeit the devise, as such a will need not be witnessed under KRS 394.040 and the will may be otherwise proved. Harl v. Vairin's Ex'r, 175 Ky. 468 , 194 S.W. 546, 1917 Ky. LEXIS 343 ( Ky. 1917 ).

The forfeiture provision of this section has no application to holographic wills. Hence, if a devisee in the will witnesses a holographic will and testifies in the procedure to probate it, the devise is not thereby made void. Cromwell v. Stevens, 212 Ky. 209 , 278 S.W. 555, 1925 Ky. LEXIS 1106 ( Ky. 1925 ).

This section does not apply when a witness testifies with respect to a holographic will. Barnes v. Graves, 259 Ky. 180 , 82 S.W.2d 297, 1935 Ky. LEXIS 290 ( Ky. 1935 ).

8.Attesting Witness.

An attesting witness within the meaning of this section is one who fulfills the conditions required by KRS 394.040 , and not one who merely testifies as to the validity of the will in contest. McNamara v. Coughlin, 159 Ky. 810 , 169 S.W. 555, 1914 Ky. LEXIS 904 ( Ky. 1914 ). See Caddell's Heirs v. Caddell's Ex'x, 175 Ky. 505 , 194 S.W. 541, 1917 Ky. LEXIS 340 ( Ky. 1917 ).

9.Evidence.

The provision in subsection (3) that a will may be proved by the testimony of one of the witnesses did not constitute an indispensable requirement for the proof, in Circuit Court, of the execution of the will, so that the introduction of a copy of the order of the county (now District) Court reciting that one of the subscribing witnesses proved the execution of the will was sufficient to support a finding by the Circuit Court that the will had been properly executed. Shoup v. Ketron, 528 S.W.2d 731, 1975 Ky. LEXIS 90 ( Ky. 1975 ).

Cited:

Clark v. Johnson, 268 Ky. 591 , 105 S.W.2d 576, 1937 Ky. LEXIS 490 ( Ky. 1937 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Probate Procedures Testate and Intestate, § 233.00.

394.220. Court may probate will without summoning parties.

A District Court may, without summoning any party, proceed to probate and admit the will to record or reject it.

History. 4860: amend. Acts 1976 (Ex. Sess.), ch. 14, § 360, effective January 2, 1978.

NOTES TO DECISIONS

1.Notice.

It is optional with the persons offering a will for probate, and the court in which it is offered, whether or not the parties in interest shall be summoned to appear in the court in which the paper is offered for probate. Maynard v. Hatcher, 107 S.W. 241, 32 Ky. L. Rptr. 720 (1908).

Notice to all interested parties is not essential to give court jurisdiction of application to probate or set aside probate of a will. Miller v. Hill, 293 Ky. 242 , 168 S.W.2d 769, 1943 Ky. LEXIS 600 ( Ky. 1943 ).

2.Statute of Limitations.

Where one presents a will for probation under this section, the action must be carried through with due diligence or the statute of limitations will run to cut off the right to probate. Mullins v. Fidelity & Deposit Co., 100 S.W. 256, 30 Ky. L. Rptr. 1077 , 1907 Ky. LEXIS 394 (Ky. Ct. App. 1907).

Cited:

Crain v. Crain, 268 Ky. 262 , 104 S.W.2d 992, 1937 Ky. LEXIS 452 ( Ky. 1937 ); Security Trust Co. v. Swope, 274 Ky. 99 , 118 S.W.2d 200, 1938 Ky. LEXIS 240 ( Ky. 1938 ).

Research References and Practice Aids

Kentucky Law Journal.

Leathers, Rethinking Jurisdiction and Notice in Kentucky, 71 Ky. L.J. 755 (1982-83).

394.225. Self-proved will.

  1. Any will may be simultaneously executed, attested, and made self-proved, by acknowledgment thereof by the testator and affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of this state and evidenced by the officer’s certificate, in substantially the following form:
  2. An attested will may, at any time subsequent to its execution, be made self-proved, by the acknowledgment thereof by the testator and the affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of this state, and evidenced by the officer’s certificate, attached or annexed to the will in form and content substantially as follows:
  3. The execution of an acknowledgment of a will by a testator, and of the affidavits of witnesses, made before an officer authorized to administer oaths under the laws of this state and evidenced by the officer’s certificate substantially in the form set out in this section during the period between June 21, 1974, and the effective date of the 1982 amendments to this section shall be considered to be a valid execution and attestation of a written will even though the will was not signed and attested separately from the execution of the acknowledgment by the testator and the affidavits of the witnesses.
  4. A self-proved will may be admitted to probate without the testimony of any subscribing witness, but otherwise treated no differently from a will not self-proved.

I, , the testator, sign my name to this instrument this day of , 19, and being first duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my last will and that I sign it willingly (or willingly direct another to sign for me), that I execute it as my free and voluntary act for the purposes therein expressed, and that I am eighteen (18) years of age or older, of sound mind, and under no constraint or undue influence. (Testator) 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. (Witness) (Witness) THE STATE OF COUNTY OF Subscribed, sworn to and acknowledged before me by , the testator and subscribed and sworn to before me by , and , witnesses, this day of . (Signed) (Signed) (OFFICIAL CAPACITY OF OFFICER)

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THE STATE OF COUNTY OF Before me, the undersigned authority, on this day personally appeared and known to me to be the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument and, all of these persons being by me first duly sworn the testator, declared to me and to the witnesses in my presence that the instrument is his last will and that he had willingly signed or directed another to sign for him, and that he executed it as his free and voluntary act for the purposes therein expressed; and each of the witnesses stated to me, in the presence and hearing of the testator, that he signed the will as witness in the presence of the testator and of the other subscribing witness, and that to the best of his knowledge the testator was eighteen (18) years of age or over, of sound mind and under no constraint or undue influence. (Testator) (Witness) (Witness) (Witness) Subscribed, sworn and acknowledged before me by , the testator, subscribed and sworn before me by and ,witnesses, this day of , A.D., (OFFICIAL CAPACITY OF OFFICER)

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History. Enact. Acts 1974, ch. 299, § 1; 1980, ch. 259, § 11, effective July 15, 1980; 1982, ch. 75, § 1, effective July 15, 1982.

Research References and Practice Aids

Kentucky Bench & Bar.

Schneider, Self-Proved Wills in Kentucky: Problems and Recommendations, Vol. 45, No. 1, January 1981, Ky. Bench & Bar 22.

Kentucky Law Journal.

Kentucky Law Survey, Catron, Wills, Probate and Real Property Law, 71 Ky. L.J. 333 (1982-83).

Northern Kentucky Law Review.

Schneider, Self-Proved Wills — A Trap for the Unwary, 8 N. Ky. L. Rev. 539 (1981).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Converting Will to Self-Proved, Form 230.10.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Wills, § 230.00.

Caldwell’s Kentucky Form Book, 5th Ed., Self-Proved Will, Form 230.09.

394.230. Deposition of subscribing witness — When and how may be taken.

When any will or any authenticated copy, as provided in KRS 394.150 , is offered for probate, and an attesting witness resides out of this state, or though in the state is in confinement in another county under legal process, or is unable from sickness, age or other infirmity to attend the court before which the will or copy is offered, or resides at a distance of more than fifty (50) miles, the court may cause a commission to be issued, annexed to the will or copy and directed to any person authorized to take depositions, to take his deposition. The deposition of such witness shall be taken and certified as depositions are taken in other cases, except that no notice need be given of the time and place of taking, unless the probate is opposed by some person who has made himself a party. The proof so given shall have the same effect as if it had been given in the court from which the commission issued.

History. 4855.

NOTES TO DECISIONS

1.Application.

The manner of taking depositions of witnesses to wills applies alone to the court in which the will is offered for probate, and not to depositions taken to be used in the Circuit Court upon appeal from the court of probate. Moore's Adm'rs v. Smith, 88 Ky. 151 , 10 S.W. 380, 10 Ky. L. Rptr. 729 , 1889 Ky. LEXIS 6 ( Ky. 1889 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Commission to Take Deposition on Written Questions of Attesting Witness, Form 230.07.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Probate Procedures Testate and Intestate, § 233.00.

394.235. Proof of will where witnesses unavailable.

When it appears to the court that a will cannot be proven as otherwise provided by law because one (1) or more or all of the subscribing witnesses to the will, at the time the will is offered for probate, are serving in or present with the Armed Forces of the United States or as merchant seamen, or are dead or mentally or physically incapable of testifying or otherwise unavailable, the court may admit the will to probate upon the testimony in person or by deposition of at least two (2) credible disinterested witnesses that the signature to the will is in the handwriting of the person whose will it purports to be, or upon other sufficient proof of such handwriting. The foregoing provision shall not preclude the court, in its discretion, from requiring in addition, proof of such other pertinent facts and circumstances as the court may deem necessary to admit the will to probate.

History. Enact. Acts 1944, ch. 101, § 1.

394.240. Actions in Circuit Court — Time in which to be brought — Filing notice of proceeding.

  1. Any person aggrieved by the action of the District Court in admitting a will to record or rejecting it may bring an original action in the Circuit Court of the same county to contest the action of the District Court. Such action shall be brought within two (2) years after the decision of the District Court. The parties may, in the same action, or in a separate action if the validity of the will is not in issue, seek construction, interpretation or reformation of a will.
  2. Upon filing an adversary proceeding in Circuit Court in matters involving probate whether in a testate or intestate proceeding or an action pursuant to subsection (1) of this section, the plaintiff shall forthwith lodge a notice of the action in the office of the county clerk of the county in which the will was admitted to probate or rejected, or if in an intestate estate in the office of the county clerk of the county in which the estate was probated. Such notice shall state the name of the testator, the style of the action, the court in which the action has been filed, the file number assigned to the action by the clerk of the court in which it has been filed, the nature of the action, and the date on which the action was commenced. Said notice shall be signed by plaintiff or his attorney and no jurat shall be necessary. The county clerk shall record and index said notice as if it were a will.

History. 4850: amend. Acts 1972, ch. 168, § 13; 1974, ch. 299, § 9; 1976 (Ex. Sess.), ch. 14, § 361, effective January 2, 1978; 1978, ch. 384, § 515, effective June 17, 1978; 1980, ch. 259, § 12, effective July 15, 1980.

NOTES TO DECISIONS

1.Purpose.

The purpose of subsection (2) of this section is to provide notice to potential bona fide purchasers that real or other recordable property of a testator is the subject of litigation. Justice v. Conn, 724 S.W.2d 227, 1986 Ky. App. LEXIS 1494 (Ky. Ct. App. 1986).

2.Application.

The two (2) year statute of limitations in this section relates only to actions in which persons feel themselves aggrieved by the action of the District Court in admitting a will to record or rejecting it, and has no relation to an action asking for an interpretation of the provisions of a valid will. Webb v. Maynard, 32 S.W.3d 502, 1999 Ky. App. LEXIS 161 (Ky. Ct. App. 1999).

3.Appeal.

If the will offered for probate is incomplete, and is not the testator’s entire last will and testament, the objectors have an adequate remedy by appeal to the Circuit Court from the order admitting the will to probate. Bowles v. Winchester, 7 Ky. Op. 582, 1874 Ky. LEXIS 226 (Ky. Ct. App. Mar. 16, 1874).

The Circuit Court has no power to determine the validity of the probation of a will by the county (now District) Court except by an appeal from that court. Abbott v. Traylor, 74 Ky. 335 , 1875 Ky. LEXIS 23 ( Ky. 1875 ).

An appeal lies to the Circuit Court from the order of the county (now District) Court refusing to admit a will to probate, whether the decision in the county court is based upon lack of jurisdiction or any other reason. Preston v. Fidelity Trust & Safety Vault Co., 15 Ky. L. Rptr. 130 (1893).

The only issue on an appeal is whether the particular instrument probated or rejected by the county (now District) Court is the will of the testatrix. Kiefer's Ex'r & Ex'x v. Deibel, 292 Ky. 318 , 166 S.W.2d 430, 1942 Ky. LEXIS 79 ( Ky. 1942 ).

The exclusive mode of reviewing the probate of a will in the county (now District) Court is by an appeal to the Circuit Court. Herd v. Herd, 293 Ky. 258 , 168 S.W.2d 762, 1943 Ky. LEXIS 599 ( Ky. 1943 ).

The exclusive mode of securing de novo trial in the Circuit Court in a will contest action is by appeal from the judgment of the county court that either admits the document to record or rejects it and on appeal procedural matters are treated with great liberality. Duncan v. O'Nan, 451 S.W.2d 626, 1970 Ky. LEXIS 404 ( Ky. 1970 ).

Where a case involved a substantial estate and would require much advance preparation, it was an abuse of discretion for the trial court to dismiss for want of prosecution after an interval of nine months from the filing of the suit. Gill v. Gill, 455 S.W.2d 545, 1970 Ky. LEXIS 254 ( Ky. 1970 ).

Review of a judgment entered by a Circuit Court in a will contest action brought pursuant to the statute must be sought by filing a notice of appeal, not a motion for discretionary review. Mize v. Hughes, 944 S.W.2d 16, 994 S.W.2d 16, 1998 Ky. App. LEXIS 133 (Ky. Ct. App. 1998).

4.— Exclusive Remedy.

The appeal to the Circuit Court given by this section is exclusive. The county (now District) Court, after probating or rejecting the will, has no jurisdiction to hear a motion to set the order aside or grant a new trial. The only remedy is by appeal to the Circuit Court. Patton v. Sallee, 159 Ky. 285 , 166 S.W. 1004, 1914 Ky. LEXIS 777 ( Ky. 1914 ).

5.— Form.

In appealing from the county (now District) to the Circuit Court, it is sufficient if the transcript filed shows who the parties appellant and appellee are, and that the judgment of the county court was rendered at a certain time, from which the appellants desire an appeal. The propounders cannot, by motion, require the contestants to file a statement of the grounds upon which they rely to have the will set aside. Lisle v. Couchman, 146 Ky. 345 , 142 S.W. 1023, 1912 Ky. LEXIS 95 ( Ky. 1912 ).

An appeal to the Circuit Court may be effected by filing a certified copy of the judgment of the county (now District) Court along with copies of the will as exhibits with the petition. Davis' Ex'r v. Laughlin, 280 Ky. 422 , 133 S.W.2d 544, 1939 Ky. LEXIS 140 ( Ky. 1939 ).

6.— Persons Entitled.

One who has been named as executor in a will has such an interest as gives him the right to appeal to the Circuit Court from an order of the county (now District) Court rejecting the will. Pryor v. Mizner, 79 Ky. 232 , 2 Ky. L. Rptr. 253 , 1881 Ky. LEXIS 2 (Ky. Ct. App. 1881).

Any purchaser who claims title to real property as a purchaser from an heir of the testator is a “person interested” under KRS 394.170 , and may appeal from an order of the county (now District) Court admitting a will to probate. Davies v. Leete, 111 Ky. 659 , 64 S.W. 441, 23 Ky. L. Rptr. 899 , 1901 Ky. LEXIS 228 ( Ky. 1901 ). See Johnson v. Bard, 54 S.W. 721, 31 Ky. L. Rptr. 999 , 1900 Ky. LEXIS 385 (Ky. Ct. App. 1900).

The general creditors of an insolvent heir of a decedent, who claim that a purported will disinheriting their debtor is spurious and fraudulent as to them, may appeal from an order probating the will, where their debtor himself fails to prosecute such an appeal. Brooks v. Paine's Ex'rs, 123 Ky. 271 , 90 S.W. 600, 28 Ky. L. Rptr. 857 , 1906 Ky. LEXIS 112 ( Ky. 1906 ).

7.— Lack of Service.

The Circuit Court has no jurisdiction to set aside the order of the county (now District) Court admitting a will to probate in a suit filed by a nonresident who was not brought before the county court either by actual or constructive service. Maynard v. Hatcher, 107 S.W. 241, 32 Ky. L. Rptr. 720 (1908).

8.— Necessary Parties.

Where an appeal is taken from the county (now District) to the Circuit Court from an order of the county court probating a will, the devisees and legatees are the only necessary parties to perfect the appeal. Scott v. Roy, 144 Ky. 99 , 137 S.W. 858, 1911 Ky. LEXIS 565 ( Ky. 1911 ).

9.— Pleadings.

Where the defendant in a will contest failed to file a response to a complaint filed in circuit court, the lack of response was not grounds for a directed verdict, since the action was an appeal from an inferior court and no pleadings are required in such actions. Dennison v. Roberts, 439 S.W.2d 577, 1968 Ky. LEXIS 145 ( Ky. 1968 ).

10.— Estoppel.

Where an heir without knowledge that a will was not properly executed indicated to the executor that she would not contest the will, she was not estopped five months later from contesting the will on appeal to the Circuit Court, since the executor had not changed his position in the interim. Miller's Ex'r v. Shannon, 299 S.W.2d 103, 1957 Ky. LEXIS 389 ( Ky. 1957 ).

11.— Time Limitation.

Children were barred from taking an appeal from order probating will where five years had elapsed from the date of probate. Noland v. Stacy, 110 S.W. 264, 33 Ky. L. Rptr. 321 (1908).

An appeal from the county (now District) to the Circuit Court is barred by the five-year (now two-year) period of limitations, even though the appellants were not notified and had no knowledge of the probate proceedings or that they were beneficiaries thereunder. Crain v. Crain, 268 Ky. 262 , 104 S.W.2d 992, 1937 Ky. LEXIS 452 ( Ky. 1937 ).

There is no saving clause in the statutes in respect of time to prosecute an appeal to the Circuit Court from the order of the county (now District) court probating or rejecting a will. Crain v. Crain, 268 Ky. 262 , 104 S.W.2d 992, 1937 Ky. LEXIS 452 ( Ky. 1937 ). See Moore v. Stovall, 309 Ky. 562 , 218 S.W.2d 385, 1949 Ky. LEXIS 757 ( Ky. 1949 ).

Where a petition to the Circuit Court under this section is removed from the docket by an order filing it away with leave to reinstate without notice, the petition is not dismissed and cannot be barred by the time limitation while it was so pending. Jones v. Blankenship, 313 Ky. 509 , 232 S.W.2d 1019, 1950 Ky. LEXIS 922 ( Ky. 1950 ).

Where a will devising land was admitted to probate in 1935 and has never been set aside, even if it could be collaterally attacked in a subsequent action to determine the intestate succession under one of the devisees, such attack would be barred by the statute of limitations. Morris v. Sparrow, 459 S.W.2d 768, 1970 Ky. LEXIS 151 ( Ky. 1970 ), cert. denied, 403 U.S. 939, 91 S. Ct. 2254, 29 L. Ed. 2d 718, 1971 U.S. LEXIS 1611 (U.S. 1971), cert. denied, 411 U.S. 985, 93 S. Ct. 2283, 36 L. Ed. 2d 963, 1973 U.S. LEXIS 2466 (U.S. 1973).

12.— Findings by Court.

Where independent action was brought in the Circuit Court to have probate of will declared void, and parties agreed to submit the case without the intervention of a jury, the findings of fact by the court would be given the same effect as the verdict of a jury in an ordinary action at law. Herd v. Herd, 293 Ky. 258 , 168 S.W.2d 762, 1943 Ky. LEXIS 599 ( Ky. 1943 ).

13.— Multiple Wills Probated.

Statement of court in Central Trust Co. v. Bennett, 208 Ky. 281 , 270 S.W. 821, 823, 1925 Ky. LEXIS 270 (1925), that if two or more wills are offered for probate in the county (now District) Court and one is probated and the others are rejected, the parties in interest may appeal from the several orders, in which event the Circuit Court will have jurisdiction to try which, if any, of the wills so offered is the will of the testator, means that in cases where the county court, having before it concurrently more than one will offered for probate, considers them together in one proceeding, for if it were otherwise, a party might be able to relitigate collaterally the original probate once for each separate earlier will that could be found or proved, even after expiration of the five-year limitation for appeal of the first action to the Circuit Court. Payne v. Chenault, 343 S.W.2d 129, 1960 Ky. LEXIS 102 ( Ky. 1960 ).

14.— Burden of Proof.

Fact that petition in will contest did not attack the validity of the execution of the will did not prevent contestants from attacking its validity, since the burden was on the propounders in limine to establish the apparent validity of the execution of the will. Poindexter's Adm'r v. Alexander, 277 Ky. 147 , 125 S.W.2d 981, 1939 Ky. LEXIS 612 ( Ky. 1939 ).

On appeal the propounders of a will have the burden of proof as to the authenticity and due execution of the will. Lowrance v. Moreland, 310 Ky. 533 , 221 S.W.2d 62, 1949 Ky. LEXIS 955 ( Ky. 1949 ).

15.— Closing Argument.

Where eight appeals were consolidated for appeal of a will contest, the trial judge exercised a reasonable discretion in arranging the order of argument so as to give the executor the last closing argument. Hagan v. Higgins, 453 S.W.2d 579, 1970 Ky. LEXIS 322 ( Ky. 1970 ).

Where several appeals were consolidated, the propounder of the alleged subsequent wills waived the right to the last closing argument, if she had such right, by not asserting it at the pretrial conference when the order of proof was arranged. Hagan v. Higgins, 453 S.W.2d 579, 1970 Ky. LEXIS 322 ( Ky. 1970 ).

16.Subsequent Proceedings as Original Action.

Although the validity of a will had been originally contested in a probate proceeding in a county court before the adoption of the judicial article which eliminated the county courts, the Circuit Court had jurisdiction to hear subsequent proceedings in the case as an original action rather than as an appeal, even though the party who filed the action in the Circuit Court failed to comply with certain procedural matters involving that court’s jurisdiction. Smith v. Riherd, 603 S.W.2d 494, 1980 Ky. App. LEXIS 351 (Ky. Ct. App. 1980).

17.Jurisdiction.

Although subsection (2) of this section uses such language as “shall forthwith lodge a notice,” the failure to file such notice does not strip the Circuit Court of jurisdiction to hear the case; jurisdiction of a Circuit Court is invoked by filing a complaint in accordance with CR 3 regardless of whether the notice requirements of this section are complied with. Justice v. Conn, 724 S.W.2d 227, 1986 Ky. App. LEXIS 1494 (Ky. Ct. App. 1986).

District Courts are vested with exclusive jurisdiction over probate matters, except for adversary proceedings, or those proceedings provided for by statute to be commenced in Circuit Court; there is no statute providing for an action to determine the validity of a will to be commenced in the Circuit Court. Mullins v. First American Bank, 781 S.W.2d 527, 1989 Ky. App. LEXIS 152 (Ky. Ct. App. 1989).

This section and KRS 24A.120 , read together, require (1) that all proceedings for the admission to probate of a will or codicil be commenced in the District Court; (2) that the District Court must either admit or reject the instrument; and (3) that the District Court retains jurisdiction over the matter until such time as a will contest, or adversary proceeding, is commenced in the Circuit Court. Mullins v. First American Bank, 781 S.W.2d 527, 1989 Ky. App. LEXIS 152 (Ky. Ct. App. 1989).

Although subsection (2) of this section uses such language as “shall forthwith lodge a notice,” the failure to file such a notice does not strip the Circuit Court of jurisdiction to hear the case. KRS 24A.120(2) states that the Circuit Court shall have jurisdiction over adversary proceedings which shall be filed in accordance with the Kentucky Rules of Civil Procedure. West v. Goldstein, 830 S.W.2d 379, 1992 Ky. LEXIS 50 ( Ky. 1992 ).

The District Court was without jurisdiction to construe or interpret a will, and its ruling that adopted child was not a beneficiary was not conclusive of the issue. Vega v. Kosair Charities Committee, Inc., 832 S.W.2d 895, 1992 Ky. App. LEXIS 141 (Ky. Ct. App. 1992).

In an action to settle a probate estate, the Circuit Court alone had subject matter jurisdiction over all the contested issues presented in the case, and absent any non-contested issues, there was nothing over which the District Court retained any authority to act. Hale v. Moore, 289 S.W.3d 567, 2008 Ky. App. LEXIS 5 (Ky. Ct. App. 2008).

18.Adversary Proceeding.

An adversary proceeding is not created by the mere opposition of a party to the admission to probate of a will, and such opposition does not therefore divest the District Court of its jurisdiction or its duty to rule on the merits of the matter before it. Mullins v. First American Bank, 781 S.W.2d 527, 1989 Ky. App. LEXIS 152 (Ky. Ct. App. 1989).

19.Codicil to a Will.

In an action regarding the admissibility of a codicil to a will, the District court can and should decide as to the codicil’s validity; thereafter an aggrieved party may, if desired, contest the codicil by following the procedure in this section. If such an adversarial action is pursued in Circuit Court, the District Court shall retain jurisdiction to entertain any motions or matters not related to the adversarial proceeding, and shall, at the conclusion of the Circuit Court action, proceed with the probate of the estate to its conclusion. Mullins v. First American Bank, 781 S.W.2d 527, 1989 Ky. App. LEXIS 152 (Ky. Ct. App. 1989).

20.Foreign adjudication of testamentary integrity.

Will probated in a foreign jurisdiction is valid in Kentucky to the same extent that it has been proven in the foreign jurisdiction and where there has been no adjudication of the underlying validity of the will in the foreign jurisdiction, the issue may be raised in Kentucky pursuant to this section. Marr v. Hendrix, 952 S.W.2d 693, 1997 Ky. LEXIS 116 ( Ky. 1997 ).

Kentucky courts possess jurisdiction to entertain a final judgment determining a foreign will tendered for ancillary probate in Kentucky to the extent that the will disposes of real property located in Kentucky, provided that there has been no action contesting the validity of the will in a foreign jurisdiction. Marr v. Hendrix, 952 S.W.2d 693, 1997 Ky. LEXIS 116 ( Ky. 1997 ).

Cited:

Security Trust Co. v. Swope, 274 Ky. 99 , 118 S.W.2d 200, 1938 Ky. LEXIS 240 ( Ky. 1938 ); Henry v. Spurlin, 277 Ky. 114 , 125 S.W.2d 992, 1939 Ky. LEXIS 614 ( Ky. 1939 ); Davis’ Ex’r v. Laughlin, 280 Ky. 422 , 133 S.W.2d 544, 1939 Ky. LEXIS 140 ( Ky. 1939 ); Ramsey v. Howard, 289 Ky. 389 , 158 S.W.2d 981, 1942 Ky. LEXIS 566 ( Ky. 1942 ); Alexander v. Stewart, 301 Ky. 544 , 192 S.W.2d 204, 1945 Ky. LEXIS 749 ( Ky. 1945 ); Hensley v. O’Forest, 313 Ky. 789 , 233 S.W.2d 996, 1950 Ky. LEXIS 994 ( Ky. 1950 ); Schmitt v. Kentucky Trust Co., 429 S.W.2d 839, 1968 Ky. LEXIS 756 ( Ky. 1968 ); Fischer v. Jeffries, 697 S.W.2d 159, 1985 Ky. App. LEXIS 725 (Ky. Ct. App. 1985); Conn v. Conn, 2005 Ky. App. LEXIS 199 (Ky. Ct. App. 2005).

Research References and Practice Aids

Kentucky Law Journal.

Leathers, Rethinking Jurisdiction and Notice in Kentucky, 71 Ky. L.J. 755 (1982-83).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint in Circuit Court to Contest Will for Undue Influence, Form 230.24.

Caldwell’s Kentucky Form Book, 5th Ed., Notice of Filing Action in Circuit Court to Contest Will, Form 230.23.

Caldwell’s Kentucky Form Book, 5th Ed., Order in Circuit Court in Will Case, Form 230.25.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Lis Pendens, § 312.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Wills, § 230.00.

394.250. When action in circuit court stays proceedings under will — Court may stop distribution.

An action filed in the circuitcCourt, pursuant to KRS 394.240 , shall not, unless taken within twelve (12) months from the entry of the district court’s order, prevent the appointment of an administrator or executor by the district court or the settlement, distribution, and division of the decedent’s estate. The circuit court in which proceedings are pending may make an order restraining the further distribution and division of the estate. Should such a restraining order be made, the court may in its discretion require the plaintiffs to give bond as required by the Rules of Civil Procedure concerning injunctive relief in civil actions generally. Such an order shall not restrain administration of the estate other than as set out in the order.

History. 4851: amend. Acts 1974, ch. 299, § 8; 1976 (Ex. Sess.), ch. 14, § 362, effective January 2, 1978.

NOTES TO DECISIONS

1.Administrator’s Right to Possession of Property.

Where a curator of the estate has been appointed pursuant to KRS 395.410 and the will ordered to be probated and an administrator with will annexed has been appointed, the administrator is entitled to possession of the property and his right to the possession of the property of the estate is not affected by an appeal to the Circuit Court. King's Adm'r v. Rose, 100 Ky. 393 , 38 S.W. 844, 18 Ky. L. Rptr. 862 , 1897 Ky. LEXIS 18 ( Ky. 1897 ).

Cited:

Sims v. Birdsong’s Adm’r, 50 S.W. 993, 21 Ky. L. Rptr. 75 (1899); Barth v. Citizens Fidelity Bank & Trust Co., 368 S.W.2d 339, 1963 Ky. LEXIS 49 ( Ky. 1963 ).

394.260. Proceedings in Circuit Court.

When the proceeding is taken to the Circuit Court, all necessary parties shall be brought before the court by the plaintiff. The final decision given shall, subject to appeal to the Court of Appeals, be a bar to any other proceeding calling the probate or rejection of the will in question. This section does not preclude a court of justice from its jurisdiction to impeach such final decision for any reason that would give it jurisdiction over any other judgment at law.

History. 4859: amend. Acts 1976 (Ex. Sess.), ch. 14, § 363, effective January 2, 1978; 1978, ch. 384, § 115, effective June 17, 1978; 1980, ch. 259, § 13, effective July 15, 1980.

NOTES TO DECISIONS

1.In General.

Action to set aside probate of a will, on grounds of lack of mental capacity and exercise of undue influence, is not made an equitable action, and triable as such, by this section. Farris v. Evans, 289 Ky. 418 , 158 S.W.2d 941, 1942 Ky. LEXIS 556 ( Ky. 1942 ). (Decision prior to 1978 amendment).

2.Necessary Parties.

A judgment in Circuit Court against the will is not void as to parties properly before the court because infant beneficiaries are not brought before the court. Bohannon v. Tarbin, 76 S.W. 46, 25 Ky. L. Rptr. 515 (1903).

Where an appeal to Circuit Court was taken from an order probating a will shortly before the lapse of the period of limitations, and a warning order was issued after the limitations period for a son who was not a devisee or legatee in the will and who answered that he desired to contest the will, the nonresident was not a necessary party in order to perfect the appeal. Scott v. Roy, 144 Ky. 99 , 137 S.W. 858, 1911 Ky. LEXIS 565 ( Ky. 1911 ).

“All necessary parties” refers to and means parties in whose favor the probate court adjudged, and not parties against whom, or against whose interest, that judgment was rendered, and who are interested in having it vacated and set aside. Security Trust Co. v. Swope, 274 Ky. 99 , 118 S.W.2d 200, 1938 Ky. LEXIS 240 ( Ky. 1938 ).

Where no guardian was appointed for minor contestees, minors were not before court, and where warning order attorney appointed for nonresident contestees failed to file a report, nonresidents were not before the court, so that judgment setting aside the will was required to be reversed for lack of parties. McComas v. Hull, 274 Ky. 192 , 118 S.W.2d 540, 1938 Ky. LEXIS 250 ( Ky. 1938 ).

The words “necessary parties” mean all beneficiaries named in the will in a case where the appeal is from a judgment probating the will. Russell v. Grumbley's Ex'r, 290 Ky. 57 , 160 S.W.2d 321, 1942 Ky. LEXIS 340 ( Ky. 1942 ).

When a will has been probated in the county (now District) Court and an appeal taken to the Circuit Court, all the beneficiaries under the will are necessary parties, since they are interested in sustaining the judgment of the county court probating the will. Russell v. Grumbley's Ex'r, 290 Ky. 57 , 160 S.W.2d 321, 1942 Ky. LEXIS 340 ( Ky. 1942 ).

3.Jury.

The issue of whether the probate of a will is barred by the statute of limitations is not a jury question. Second Nat'l Bank & Trust Co. v. First Sec. Nat'l Bank & Trust Co., 398 S.W.2d 50, 1965 Ky. LEXIS 38 ( Ky. 1965 ).

4.— Verdict.

In a will contest case where there has been a trial before a jury, the appellate court will give the same effect to the verdict of a jury as is given the verdict of a jury in other civil cases. Ellis v. Moss, 257 Ky. 168 , 77 S.W.2d 377, 1934 Ky. LEXIS 514 ( Ky. 1934 ). See Duval v. Duval, 249 Ky. 186 , 60 S.W.2d 351, 1932 Ky. LEXIS 887 ( Ky. 1932 ); Stone v. Stone, 263 Ky. 732 , 93 S.W.2d 617, 1936 Ky. LEXIS 234 ( Ky. 1936 ).

5.Circuit Court’s Jurisdiction.

If it is found that the will is not the last will of the testator, the Circuit Court does not have jurisdiction to order probate of another paper as the last will of the testator which is introduced in evidence at the trial of the case for the first time. Central Trust Co. v. Bennett, 208 Ky. 281 , 270 S.W. 821, 1925 Ky. LEXIS 270 ( Ky. 1925 ).

When an appeal has been taken to the Circuit Court from an order of county (now District) Court probating a will, the only question before the court is whether the probated will is the last will of the testator. Central Trust Co. v. Bennett, 208 Ky. 281 , 270 S.W. 821, 1925 Ky. LEXIS 270 ( Ky. 1925 ).

In a will contest the Circuit Court has jurisdiction to pass on the preliminary question of whether the contestant is entitled to maintain the action. First Nat'l Bank v. Stahr, 329 S.W.2d 582, 1959 Ky. LEXIS 178 ( Ky. 1959 ).

Since the county (now District) Court has exclusive jurisdiction of the probate of wills, a Circuit Court has no power to order the probate of a will other than one probated or rejected by the county court and therefore may consider on appeal only the question of whether the will probated or rejected by the county court was the will of the testator. Shoup v. Ketron, 528 S.W.2d 731, 1975 Ky. LEXIS 90 ( Ky. 1975 ).

6.— Supersedeas Bond.

A supersedeas bond on appeal from an order holding a release invalid did not deprive Circuit Court of jurisdiction to proceed with will contest pending such appeal. First Nat'l Bank v. Stahr, 329 S.W.2d 582, 1959 Ky. LEXIS 178 ( Ky. 1959 ).

7.Conclusive Judgment.

Judgment of probate in county (now District) Court is conclusive unless set aside on appeal to Circuit Court in prescribed mode. Since the statutes giving the right of appeal do not say how it shall be taken and designate no particular mode, they permit prosecution to be according to the mode adopted or practice sanctioned for many years, and technical strictness is not required. Henry v. Spurlin, 277 Ky. 114 , 125 S.W.2d 992, 1939 Ky. LEXIS 614 ( Ky. 1939 ).

A judgment probating a will by a court having jurisdiction, being a proceeding in rem, is conclusive as to the due execution and validity and is binding not only on the heirs of the testator but on all the world. Strother v. Day, 279 S.W.2d 785, 1955 Ky. LEXIS 541 ( Ky. 1955 ).

8.Final Decision.

“Final decision” means the judgment of the court entered upon the verdict of a jury, if there has been a jury trial, and not the verdict of the jury. Ellis v. Ellis, 104 Ky. 121 , 46 S.W. 521, 20 Ky. L. Rptr. 438 , 1898 Ky. LEXIS 136 ( Ky. 1898 ).

9.Agreement to Dismiss Appeal.

Where there has been an appeal from the county (now District) Court to the Circuit Court and an order entered in the Circuit Court dismissing the appeal by agreement of the parties, such an order is binding only upon the parties who were before the court, and is not a bar to an appeal from the county to the Circuit Court by one who was not before the court when the agreement was entered into. Lischy v. Schrader, 104 Ky. 657 , 47 S.W. 611, 20 Ky. L. Rptr. 843 , 1898 Ky. LEXIS 203 ( Ky. 1898 ).

10.Lack of Actual Notice.

The fact that persons appealing from county (now District) Court judgment admitting will to probate made false affidavits as to names and residences of other parties interested in will, and as to appellants’ knowledge concerning whereabouts of such other persons, and such other persons therefore received no actual notice from the warning orders issued on such false affidavits did not render the judgment of the Circuit Court void, but only voidable, and the judgment could only be attacked within the period specified in KRS 394.280 . Miller v. Hill, 293 Ky. 242 , 168 S.W.2d 769, 1943 Ky. LEXIS 600 ( Ky. 1943 ).

11.Undue Influence.

Where a will is contested on the ground of undue influence, the jury may find that undue influence was exercised by one of the legatees and that legacy void, without finding that the whole will was void. Hanna v. Eiche, 258 Ky. 282 , 79 S.W.2d 950, 1934 Ky. LEXIS 579 ( Ky. 1934 ).

12.Competency of Testator.

In the absence of evidence to the contrary, it must be presumed that if a person was competent to make a part of a will, he was competent as to all the provisions of a will. Hildreth v. Hildreth, 153 Ky. 597 , 156 S.W. 144, 1913 Ky. LEXIS 895 ( Ky. 1913 ).

13.Determination of Residency.

Where, in an action challenging the propriety of the probate of a will, the question of the decedent’s residence was raised and determined, the judgment of the Circuit Court that the decedent was a resident of that county and affirming the probate of the will stands unless and until it is vacated in a proper proceeding before that court and is not subject to collateral attack before the Circuit Court of another county notwithstanding the provision of this section allowing a final decision of a Circuit Court to be impeached by a court of equity (now justice). Strother v. Day, 279 S.W.2d 785, 1955 Ky. LEXIS 541 ( Ky. 1955 ).

Research References and Practice Aids

Kentucky Law Journal.

Leathers, Rethinking Jurisdiction and Notice in Kentucky, 71 Ky. L.J. 755 (1982-83).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Wills, § 230.00.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint in Circuit Court to Contest Will for Undue Influence, Form 230.24.

394.270. Evidence given on probate may be read at trial.

The record of what is proved or deposed in court by witnesses on the motion to admit a will to record, and any deposition lawfully taken out of court on such motion, of witnesses who cannot be produced at a trial in the Circuit Court before a jury, may, on such trial, be admitted as evidence, to have such weight as the jury thinks they deserve.

History. 4863.

NOTES TO DECISIONS

1.Depositions.

The rationale behind the acceptable use of depositions filed in former action that has been dismissed which involved same matter as action at bar, or of answers to interrogatories, or the like, warrants use in considering motion for summary judgment of evidence heard in probate court. Rowland v. Miller's Adm'r, 307 S.W.2d 3, 1956 Ky. LEXIS 1 ( Ky. 1956 ).

This section by negation prohibits the use of depositions filed in former action that has been dismissed which involved the same subject matter as the action at bar or of answers to interrogatories or the like in the Circuit Court unless the witnesses are unavailable. Rowland v. Miller's Adm'r, 307 S.W.2d 3, 1956 Ky. LEXIS 1 ( Ky. 1956 ).

2.Testimony Proved by Other Witnesses.

Where the witness has testified in the county (now District) Court in the proceedings to admit the will to probate and afterwards dies, his testimony given in the county (now district) court may be proved by other witnesses in the Circuit Court upon appeal; it is not necessary that the witness state the exact words of the deceased witness, but may state the substance thereof. Thompson v. Blackwell, 56 Ky. 609 , 1856 Ky. LEXIS 65 ( Ky. 1856 ) (decided under prior law). See Cave's Devisees v. Cave's Heirs, 76 Ky. 452 , 1877 Ky. LEXIS 88 ( Ky. 1877 ) (decided under prior law).

Research References and Practice Aids

Cross-References.

Transcript may be used in subsequent trial if witness is unavailable, Rules of Evidence, Rule 804.

394.280. Nonresidents, persons not parties and infants may have retrial — Time — Extent of.

  1. Any person interested who, at the time of the final decision in the Circuit Court, resided out of this state and was proceeded against by warning order only, without actual appearance or being personally served with process, and any other person interested who was not a party to the proceeding by actual appearance or being personally served with process, may, within three (3) years after the final decision in the Circuit Court, by petition in equity, impeach the decision and have a retrial of the question of probate; and either party shall be entitled to a jury for the trial thereof. An infant, not a party, shall not be barred of such proceeding in equity until twelve (12) months after attaining full age.
  2. But no such proceeding in equity for establishing or avoiding a will shall operate further than is necessary to the rights of such infant, nonresident, or other party, or otherwise affect the rights of any other person interested in the probate.

History. 4861, 4862.

NOTES TO DECISIONS

1.Person Interested.

A purchaser of an heir at law of the testator is a “person interested” under the provisions of this section, and has a right to contest the probate of the will of the testator. Foster v. Jordan, 130 Ky. 445 , 113 S.W. 490, 1908 Ky. LEXIS 290 ( Ky. 1908 ).

2.Attack of Probate.

Judgment of Circuit Court rejecting probate of a will, on appeal from county (now District) Court, was not void because all parties interested in will were not given notice of the appeal or brought before the court; such judgment could be attacked only as provided in this section. Miller v. Hill, 293 Ky. 242 , 168 S.W.2d 769, 1943 Ky. LEXIS 600 ( Ky. 1943 ).

The fact that persons appealing from county (now District) Court judgment admitting will to probate made false affidavits as to names and residences of other parties interested in will, and as to appellants’ knowledge concerning whereabouts of such other persons, and such other persons therefore received no actual notice from the warning orders issued on such false affidavits did not render the judgment of the Circuit Court void, but only voidable, and the judgment could only be attacked within the period specified in this section. Miller v. Hill, 293 Ky. 242 , 168 S.W.2d 769, 1943 Ky. LEXIS 600 ( Ky. 1943 ).

3.Nonresident.

In a proceeding by one formerly proceeded against as a nonresident to impeach the judgment admitting a will to probate and to procure a retrial, the only parties necessary to be joined are persons claiming under the will with whom the petitioner’s claim is in conflict. Irvine v. Greenway, 220 Ky. 388 , 295 S.W. 445, 1927 Ky. LEXIS 557 ( Ky. 1927 ).

4.Infants.

An infant has until the lapse of 12 months after becoming of age to attack a judgment of the Circuit Court in a will contest where he was not made a party. But the action may be commenced at any time before he has become of age and, if such action is instituted and prosecuted, it is binding upon him after becoming of age. Bohannon v. Tarbin, 76 S.W. 46, 25 Ky. L. Rptr. 515 (1903).

When a will has been probated in the county (now District) Court and there are infant heirs for whom no guardian has been appointed, the infants must appeal to the Circuit Court within 12 months after attaining full age or the appeal is lost. Noland v. Stacy, 110 S.W. 264, 33 Ky. L. Rptr. 321 (1908).

5.Lack of Parties.

Where no guardian was appointed for minor contestees, minors were not before court, and where warning order attorney appointed for nonresident contestees failed to file a report, nonresidents were not before the court, so that judgment setting aside the will was required to be reversed for lack of parties. McComas v. Hull, 274 Ky. 192 , 118 S.W.2d 540, 1938 Ky. LEXIS 250 ( Ky. 1938 ).

6.Vacation of County Court Action.

When a will has been admitted to probate by the county (now District) Court, the Circuit Court has no jurisdiction to vacate the action of the county court on a petition in equity to set aside the will. Such an action is available only where one of the parties was a nonresident and was proceeded against by warning order only or where one of the parties was an infant. Hughey v. Sidwell's Heirs, 57 Ky. 259 , 1857 Ky. LEXIS 36 ( Ky. 1857 ) (decided under prior law.).

Cited:

Security Trust Co. v. Swope, 274 Ky. 99 , 118 S.W.2d 200, 1938 Ky. LEXIS 240 ( Ky. 1938 ); West v. Goldstein, 830 S.W.2d 379, 1992 Ky. LEXIS 50 ( Ky. 1992 ).

Research References and Practice Aids

Kentucky Law Journal.

Leathers, Rethinking Jurisdiction and Notice in Kentucky, 71 Ky. L.J. 755 (1982-83).

394.290. Appeal to Court of Appeals. [Repealed.]

Compiler’s Notes.

This section (4850) was repealed by Acts 1960, ch. 104, § 22.

394.295. Vacation or modification of judgment upon discovery of later will.

The court in which a judgment has been rendered shall have power to vacate or modify it when any paper purporting to be the last will of any person has been, or may be hereafter admitted to probate, and a later will has been discovered. A judgment on this ground, however, shall not be vacated or modified, unless proceedings to that end shall be instituted within ten (10) years after the death of the testator. If the earlier will shall have been established by judgment of the Circuit Court, the proceedings to vacate shall be instituted in the Circuit Court. The proceedings to vacate shall be by petition to which all persons interested in the earlier will shall be made defendants. Otherwise, the proceedings to vacate shall be instituted in the District Court. Provided, however, that a judgment on the ground herein named shall not be vacated or modified until the validity of such later will has been determined in such proceedings. When such former judgment has been vacated or modified such later will shall be admitted to probate in the manner and under the laws governing the probation of wills before the expiration of five (5) years. The judgment establishing such later will and vacating the judgment establishing the former will shall be without prejudice to the vested rights of innocent third parties. The court in which relief is sought for the reasons herein set out, may enter such orders as may be necessary to protect the rights of the parties during the pendency of the proceedings.

History. C.C. 518(9): amend. Acts 1926, ch. 27; trans. and amend. Acts 1952, ch. 84, §§ 1, 20; 1976 (Ex. Sess.), ch. 14, § 364, effective January 2, 1978; 1980, ch. 259, § 14, effective July 15, 1980.

NOTES TO DECISIONS

1.Application.

This section does not apply where the document offered for probate is an earlier will than the one already admitted to probate. Payne v. Chenault, 343 S.W.2d 129, 1960 Ky. LEXIS 102 ( Ky. 1960 ).

2.Earlier Will Found.

Where will of November, 1957 had already been probated when will and codicil of January, 1953 and August, 1957, respectively were first offered the actions of both the county and Circuit Court in declining to admit them were proper. Payne v. Chenault, 343 S.W.2d 129, 1960 Ky. LEXIS 102 ( Ky. 1960 ).

3.Appeal.

Where a paper purporting to be the last will and testament of a deceased person was offered in county (now District) Court and duly probated, and two years later appeal was entered in Circuit Court from the order of the county court and later contestants produced in county court a writing purporting to be the last will and testament of the deceased, of which they had no previous knowledge, and moved for its probate and the county court refused their motion, and from such ruling they appealed to the Circuit Court, and it dismissed the appeal, the Court of Appeals in determining the matter stated the appeal to the Circuit Court from judgment of county court admitting will to probate where appellants showed later discovery of holographic will was sufficient to meet the statutory requirements, and that the lower court erred in dismissing the appeal. Rubarts v. Rubarts, 255 Ky. 695 , 75 S.W.2d 353, 1934 Ky. LEXIS 317 ( Ky. 1934 ).

Cited:

Ogden v. Stevens, 98 Ky. 564 , 17 Ky. L. Rptr. 1115 , 33 S.W. 932, 1896 Ky. LEXIS 7 ( Ky. 1 896 ); Oliver v. Park, 101 Ky. 1 , 19 Ky. L. Rptr. 179 , 39 S.W. 423, 1897 Ky. LEXIS 142 ( Ky. 1897 ); Lucas v. Stanley, 185 Ky. 221 , 215 S.W. 38, 1919 Ky. LEXIS 274 ( Ky. 1919 ); Samuels v. Weikel, 195 Ky. 552 , 242 S.W. 835, 242 S.W. 836, 1922 Ky. LEXIS 346 ( Ky. 1922 ); Anderson’s Adm’x v. Bourbon Agricultural Bank & Trust Co., 265 Ky. 157 , 96 S.W.2d 257, 1936 Ky. LEXIS 451 ( Ky. 1936 ); Vaughan’s Adm’r v. Vaughan, 271 Ky. 387 , 111 S.W.2d 1037, 1937 Ky. LEXIS 238 (1937).

394.300. Recording of wills.

  1. Every will or authenticated copy admitted to record by any court shall be recorded by the county clerk, and remain in his office, except during such time as it may be carried to another court under subpoena duces tecum.
    1. A will probated in the court of one (1) Kentucky county and recorded in the office of the county clerk for that county may be recorded in the office of the county clerk for other counties without the process of probate in the other county.
    2. Production of an attested copy of the will together with an attested copy of the order of probate shall be required by the county clerk of the other county before recordation.
    3. The clerk shall make the same charge for recordation as is otherwise provided for recording a will.

History. 4864: amend. Acts 1980, ch. 259, § 15, effective July 15, 1980.

Opinions of Attorney General.

A county judge could not appoint the librarian of a university as nominal deputy county clerk for the purpose of receiving, maintaining and displaying the original will of Henry Clay in the library. OAG 71-46 .

Whether a will is that of nonresident of Kentucky mailed to a county clerk in this state from out-of-state, or the will of a resident so mailed, before it may be “recorded” by a county clerk in this state, it must be “admitted to record” (probated) in a District Court of this state. OAG 395.130 .

The phrase “any court,” as used in subsection (1) of this section, means any District Court in Kentucky. OAG 94-48 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for County Clerks, § 14.00.

394.310. Original will may be withdrawn from court, when.

The District Court before which a will has been probated may permit any person interested to withdraw the will temporarily upon proper terms, if it is shown that the original will is necessary as evidence in any proceeding pending in a foreign government, or in any state of the United States. A copy of the will shall always be retained and entered upon the records of the court permitting the withdrawal.

History. 4866: amend. Acts 1976 (Ex. Sess.), ch. 14, § 365, effective January 2, 1978.

Opinions of Attorney General.

The county court may not order the custody of a probated and recorded will to be given over to the husband of the decedent testatrix, unless the terms of this section are fulfilled. OAG 72-153 .

394.320. Devisee may disclaim by deed. [Repealed.]

Compiler’s Notes.

This section (2067: amend. Acts 1976 (Ex. Sess.), ch. 14, § 366, effective January 2, 1978) was repealed by Acts 1980, ch. 259, § 30, effective July 15, 1980.

394.330. Will speaks as of time testator dies.

A will shall be construed, with reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention appears in the will.

History. 4839.

NOTES TO DECISIONS

1.Purpose.

This section was enacted for the purpose of making the will effective as to after-acquired property; it has no bearing on the character of estate devised by the will. Reuling's Ex'x v. Reuling, 137 Ky. 637 , 126 S.W. 151, 1910 Ky. LEXIS 607 ( Ky. 1910 ).

The effect of this section was to make a will cover real estate or power of appointment acquired after the execution of the will. Hankins v. Columbia Trust Co., 142 Ky. 206 , 134 S.W. 498, 1911 Ky. LEXIS 221 ( Ky. 1911 ).

This section was designated to make wills effective as to after-acquired property, and it does not fix the time at which rights of the devisees attach, nor does it have any bearing upon the character of the estate conveyed. Pridemore's Ex'r v. Bailey, 300 S.W.2d 559, 1957 Ky. LEXIS 457 ( Ky. 1957 ).

2.Construction.

This section merely fixes the time at which the will speaks with reference to the real and personal estate disposed of by it, not with reference to the time when devisee’s rights may attach. Perry v. Perry, 110 Ky. 16 , 60 S.W. 855, 22 Ky. L. Rptr. 1513 , 1901 Ky. LEXIS 52 ( Ky. 1901 ). See Harvey v. Bell, 118 Ky. 512 , 81 S.W. 671, 26 Ky. L. Rptr. 381 , 1904 Ky. LEXIS 69 ( Ky. 1904 ).

3.After-acquired Property.

Where not otherwise disposed of, after-acquired property would pass through a general residuary clause. Durhams's Adm'r v. Clay, 142 Ky. 96 , 134 S.W. 153, 1911 Ky. LEXIS 166 ( Ky. 1911 ).

Under this section, property acquired after the will is made passes under the will just as if it had been owned by the testator at the time the will was made. Harlan v. Harlan, 144 Ky. 817 , 139 S.W. 1063, 1911 Ky. LEXIS 736 ( Ky. 1911 ).

Real estate owned by the testator at the time of his death and acquired after the making of his will passes under the will. Melton v. Sellars, 167 Ky. 704 , 181 S.W. 346, 1916 Ky. LEXIS 464 ( Ky. 1916 ).

In order for after-acquired property to pass under a will, there must be a clause general or broad enough to cover it and, in determining this question, the wording of the whole will must be taken into consideration, and the method used by the testator in disposing of his property. “The remainder of my lands” does not include city property, if such is the intent of the testator. Noel v. Jones, 185 Ky. 835 , 216 S.W. 98, 1919 Ky. LEXIS 382 ( Ky. 1919 ).

Where a clause in will bequeathed to specific heirs “all my United States bonds amounting now to twenty thousand dollars par value” and, at the death of testatrix, the estate included $32,500 in such bonds, it was held that the clause intended to include all such bonds held at time of death and was not limited to the amount of $20,000. McElroy v. Trigg, 296 Ky. 543 , 177 S.W.2d 867, 1944 Ky. LEXIS 570 ( Ky. 1944 ).

Where will provided that certain parts of a farm be sold, that the dwelling house and remaining land pass to certain persons, and that other property pass to others, it was clear that it was not the testator’s intent to pass a city house and lot acquired after execution of the will as “remaining land” even though the will spoke as of the testator’s death. McCulley v. Ray, 251 S.W.2d 878, 1952 Ky. LEXIS 947 ( Ky. 1952 ).

This section is applicable where a testator has bequeathed a specific item, such as “his car,” and the car owned at death is different than that owned when the will was actually executed; it does not control the question of whether the joint will is valid as a joint will. Fryxell v. Clark, 856 S.W.2d 892, 1993 Ky. App. LEXIS 85 (Ky. Ct. App. 1993).

4.— Purchase of Different Real Estate.

Where testatrix devises land to her son for life and then sells the land and buys a city home, the home purchased passes under the will and the son takes a life interest therein. Newby v. Union Bank & Trust Co., 195 Ky. 481 , 243 S.W. 11, 1922 Ky. LEXIS 369 ( Ky. 1922 ).

5.— Passes as Residuary Property.

Where the testator devised all his land located on Cumberland River to the heirs of his brother and thereafter acquired additional lands located on Cumberland River, the after-acquired land is not included in the devise to the heirs of his brother but is included in the general residuary clause of the will. Dockery's Ex'rs v. Dockery, 170 Ky. 194 , 185 S.W. 849, 1916 Ky. LEXIS 39 ( Ky. 1916 ).

6.— Passes as Intestate Property.

Where the wife devised to her husband all her real estate owned in Christian County, and thereafter acquired land in another county, the after-acquired land does not pass to her husband under the will but to her brothers as intestate property, there being no clause in the will which makes a devise of it. Gray v. Garnett, 148 Ky. 34 , 146 S.W. 18, 1912 Ky. LEXIS 386 ( Ky. 1912 ).

7.— Wrongful Death Damages.

The amount recovered for the wrongful death of testator, under KRS 411.130 , did not pass under his will giving his entire estate to his sister. Sturges v. Sturges, 126 Ky. 80 , 102 S.W. 884, 31 Ky. L. Rptr. 537 , 1907 Ky. LEXIS 27 ( Ky. 1907 ).

8.Land Under Purchase Option.

Where the testator devises his real estate and thereafter leases it with an option to purchase and dies while this option to purchase is in full force and effect, he is the owner of the fee and the real estate, in the condition that it exists at the time of his death, passes under his will. Howell v. Ackerman, 89 Ky. 22 , 11 S.W. 819, 11 Ky. L. Rptr. 251 , 1889 Ky. LEXIS 99 ( Ky. 1889 ).

9.Ademptions.

This section has no application to ademption questions. Pridemore's Ex'r v. Bailey, 300 S.W.2d 559, 1957 Ky. LEXIS 457 ( Ky. 1957 ).

10.Conditional Bequest.

Where testatrix made a bequest to the Woman’s Club which was to be void if the club indorsed woman suffrage, and the club thereafter indorsed that movement and the testatrix died five years later, it was held that the will spoke as of the date of the death of the testatrix and that the Woman’s Club was entitled to the bequest. Gill's Ex'r v. Woman's Club of Louisville, 205 Ky. 731 , 266 S.W. 378, 1924 Ky. LEXIS 211 ( Ky. 1924 ).

11.Contrary Intention.

Where a party has conveyed away his property to secure funds with which to satisfy his creditors, and then draws his will in which he contemplates regaining title to the property, and dies before regaining the title of the property conveyed, the will should be construed to speak as of the time at which the settlement with the creditors is carried out. Cornwall v. Hill, 135 Ky. 641 , 117 S.W. 311, 1909 Ky. LEXIS 247 ( Ky. 1909 ).

Where a will purported to give the widow her statutory one-third dower interest in her husband’s estate, the bequest was determined to be specific, fixed, and limited to one-third regardless of the fact that at the time of the testator’s death the statutory interest had been amended to one-half. Richie v. Richie, 476 S.W.2d 190, 1972 Ky. LEXIS 380 ( Ky. 1972 ).

Cited:

Reid's Adm'r v. Benge, 112 Ky. 810 , 66 S.W. 997, 23 Ky. L. Rptr. 2202 , 1902 Ky. LEXIS 227 ( Ky. 1902 ); McElroy v. Trigg, 296 Ky. 543 , 177 S.W.2d 867, 1944 Ky. LEXIS 570 ( Ky. 1944 ); Stewart v. Morris, 313 Ky. 424 , 231 S.W.2d 70, 1950 Ky. LEXIS 885 ( Ky. 1950 ); Scroghan v. Landers, 328 S.W.2d 411, 1959 Ky. LEXIS 105 ( Ky. 1959 ); Whitman v. Lincoln Bank & Trust Co., 340 S.W.2d 608, 1960 Ky. LEXIS 59 ( Ky. 1960 ); Pitts v. Estate of Gilbert, 672 S.W.2d 70, 1984 Ky. App. LEXIS 519 (Ky. Ct. App. 1984); Conn v. Conn, 2005 Ky. App. LEXIS 199 (Ky. Ct. App. Sept. 16, 2005).

394.340. General devise of land includes all interests therein owned by testator.

A devise of the land of the testator, or of the land of the testator in any place or occupied by any person mentioned in his will or otherwise described in a general manner, and any other general devise which would describe a leasehold estate, if the testator had no freehold estate which could be described by it, shall be construed to include his leasehold estates, or any of them to which the description extends, as well as freehold estates, unless a contrary intention appears in the will.

History. 4844.

394.350. Conveyance or act subsequent to will — Effect as to interest owned at death.

No conveyance or other act subsequent to the execution of a will shall, unless it be an act by which the will is revoked, prevent its operation with respect to such interest in the estate comprised in the will as the testator would have power to dispose of by will at the time of his death.

History. 4835.

NOTES TO DECISIONS

1.Proceeds of Sale.

Where the testator devised land to the executor with directions to sell the land and divide the proceeds among certain children, and during his lifetime sold the land and possessed the proceeds, the proceeds pass to the children under the will. Miller's Ex'r v. Melone, 109 Ky. 133 , 58 S.W. 708, 22 Ky. L. Rptr. 635 , 1900 Ky. LEXIS 197 ( Ky. 1900 ).

2.Land Conveyed by Deed and Will.

Where the testator devises specific real estate to the daughter and later by deed conveys the land to her by deed for a recited consideration and puts her in possession of the land during his lifetime, the daughter takes the land under the deed and not under the will, where it is contended that the land is subjected, by the will, to the debts of the testator. Schaefer v. Voght's Trustee, 113 Ky. 41 , 67 S.W. 54, 23 Ky. L. Rptr. 2291 , 1902 Ky. LEXIS 21 ( Ky. 1902 ).

Cited:

Murphy v. Boling, 273 Ky. 827 , 117 S.W.2d 962, 1938 Ky. LEXIS 716 , 117 A.L.R. 1373 ( Ky. 1938 ).

394.360. Conversion or removal of devised property not an ademption unless intended.

  1. The conversion of money or property or the proceeds of property, devised to one (1) of the testator’s heirs, into other property or thing, with or without the assent of the testator, shall not be an ademption of the legacy or devise unless the testator so intended; but the devisee shall have and receive the value of such devise, unless a contrary intention on the part of the testator appears from the will, or by parol or other evidence.
  2. The removal of property devised shall not operate as an ademption, unless a contrary intention on the part of the testator is manifested in like manner.

History. 2068, 2069.

NOTES TO DECISIONS

1.Construction.

This section changes the common-law rule to the effect that a sale of the property devised or bequeathed is a revocation of the devise or an ademption of the bequest, if the devisee or legatee is an heir of the testator. Wickliffe's Ex'rs v. Preston, 61 Ky. 178 , 1862 Ky. LEXIS 43 ( Ky. 1862 ) (decided under prior law). See Haselwood's Ex'r v. Webster, 82 Ky. 409 , 6 Ky. L. Rptr. 376 , 1884 Ky. LEXIS 97 (Ky. Ct. App. 1884) (decided under prior law).

2.Application.

This section is not applicable except where the devisee is claiming under the will. Schaefer v. Voght's Trustee, 113 Ky. 41 , 67 S.W. 54, 23 Ky. L. Rptr. 2291 , 1902 Ky. LEXIS 21 ( Ky. 1902 ).

This section is only applicable to one who is an heir of the testator. Hence it is not applicable to the widow of the testator because, strictly speaking, she is not an heir. Dillender v. Wilson, 228 Ky. 758 , 16 S.W.2d 173, 1929 Ky. LEXIS 657 ( Ky. 1929 ). See Franck v. Franck, 72 S.W. 275, 24 Ky. L. Rptr. 1790 , 1903 Ky. LEXIS 464 (Ky. Ct. App. 1903).

This section applies only to specific devises. Pridemore's Ex'r v. Bailey, 300 S.W.2d 559, 1957 Ky. LEXIS 457 ( Ky. 1957 ).

3.Ademption.

Where the testator devises his real estate and then sells it and confuses the proceeds with his other personal property, the devise has been adeemed. Miller v. Miller, 67 Ky. 482 , 1868 Ky. LEXIS 173 ( Ky. 1868 ) (decided under prior law).

Where the testatrix devised one-third “interest” in her homestead to one who was not an heir, and then sold the homestead during her lifetime, it was an ademption of the devise as this section is only applicable to a devise or bequest to the testator’s heirs. McBrayer's Adm'rs v. Yates, 185 Ky. 140 , 214 S.W. 815, 1919 Ky. LEXIS 256 ( Ky. 1919 ).

Where the testatrix devised land in trust for the use and benefit of her only son for life and then to certain remaindermen and gave the trustee a discretionary power of sale, and then sold the land during her lifetime and died possessed of the proceeds of the sale, the devise has been adeemed and the son takes the proceeds absolutely, either under the general bequest of all surplus personalty or as the only heir at law of the testatrix. Reynolds's Ex'r v. Reynolds, 187 Ky. 324 , 218 S.W. 1001, 1920 Ky. LEXIS 122 ( Ky. 1920 ).

Ademption is only applicable to specific legacies. Tagnon's Adm'x v. Tagnon, 253 Ky. 374 , 69 S.W.2d 714, 1934 Ky. LEXIS 664 ( Ky. 1934 ).

4.— Intent.

Where testator bequeathed to an employee his newspaper plant and building and “all my money on deposit in banks,” and provided that town residence, farm and remaining personalty should be sold and proceeds divided among heirs, and testator thereafter sold the farm and deposited proceeds in a bank other than the one in which he maintained an operating account for the newspaper, the legacy covering the townhouse, farm and personalty was a specific legacy, and, in absence of sufficient “other evidence” to prove that testator intended an ademption with relation to the farm, there was no ademption concerning it. Westover's Ex'x v. Westover, 313 Ky. 545 , 233 S.W.2d 105, 1950 Ky. LEXIS 933 ( Ky. 1950 ).

The fact that testatrix did not adjust her property to compensate her residuary estate for the income tax effect of the sale of specifically devised property did not, in the absence of any evidence that the testatrix considered the tax effect, show an intent that the sale work an ademption. Pridemore's Ex'r v. Bailey, 300 S.W.2d 559, 1957 Ky. LEXIS 457 ( Ky. 1957 ).

Under this section, the execution of a codicil changing only the executor after selling specifically devised property did not of itself show an intent to work an ademption. Pridemore's Ex'r v. Bailey, 300 S.W.2d 559, 1957 Ky. LEXIS 457 ( Ky. 1957 ).

5.— Partial.

The testatrix directed in her will that land be sold and the proceeds distributed among her grandchildren. During her lifetime she sold the land and invested the proceeds partly in mortgage notes and partly in land. It was held that the part of the fund invested in mortgage notes had not been adeemed and passed to the grandchildren under the will, but that the part invested in land had been adeemed and passed as intestate property. Durhams's Adm'r v. Clay, 142 Ky. 96 , 134 S.W. 153, 1911 Ky. LEXIS 166 ( Ky. 1911 ).

6.Sale of Realty.

A will devising land to the executor, with instructions to sell it and divide the proceeds of the same among certain children, operates as a devise of the proceeds of the sale of the land, and a sale by the testator in his lifetime is not an ademption where he died possessed of notes representing the purchase price less $200 which was paid in cash, even though the legatees were not heirs of the testator. Miller's Ex'r v. Melone, 109 Ky. 133 , 58 S.W. 708, 22 Ky. L. Rptr. 635 , 1900 Ky. LEXIS 197 ( Ky. 1900 ).

Where the testatrix devised land to her son for life with remainder to others who were not her heirs at law, and then sold the real estate taking a purchase money note for one half of the purchase price, and died before the maturity of the purchase money note, the proceeds of the note collected after the death of the testatrix pass to the son under a general devise of personalty, and not the remaindermen under the will. Newby v. Union Bank & Trust Co., 195 Ky. 481 , 243 S.W. 11, 1922 Ky. LEXIS 369 ( Ky. 1922 ).

7.Conversion of Personalty into Realty.

Where the testator bequeathed and devised all his personal property to his daughter-in-law and also all his houses and lots, which he specifically named, and then purchased other cottages, the cottages later purchased did not pass to the daughter-in-law under the will. Franck v. Franck, 72 S.W. 275, 24 Ky. L. Rptr. 1790 , 1903 Ky. LEXIS 464 (Ky. Ct. App. 1903).

8.Specific Devise.

A devise of all real estate conveyed to the testatrix in her former name was a specific devise for purposes of this section. Pridemore's Ex'r v. Bailey, 300 S.W.2d 559, 1957 Ky. LEXIS 457 ( Ky. 1957 ).

A specific devise is a gift of a particular thing, or a specified part of the testator’s estate, which is so described as to be capable of identification from all others of the same kind, and which gift may be satisfied only by the delivery of the particular thing, or a gift of the proceeds of such a thing or part of the estate. Pridemore's Ex'r v. Bailey, 300 S.W.2d 559, 1957 Ky. LEXIS 457 ( Ky. 1957 ).

9.Devise Conveyed by Deed.

If a devise of specific land is made to the daughter and the land by deed is later conveyed to her and she claims under the deed, this section has no application. Schaefer v. Voght's Trustee, 113 Ky. 41 , 67 S.W. 54, 23 Ky. L. Rptr. 2291 , 1902 Ky. LEXIS 21 ( Ky. 1902 ).

394.370. Advancement, when deemed satisfaction of devise.

A provision for or advancement to any person shall be deemed a satisfaction in whole or in part of a devise or bequest to such person contained in a previous will, if it would be so deemed in case the devisee or legatee were the child of the testator; and whether he is a child or not, it shall be so deemed in all cases in which it appears from parol or other evidence to have been so intended.

History. 4840.

NOTES TO DECISIONS

1.Purpose.

The first part of this section was intended to place devisees or legatees, to whom the testator does not stand in the relation of a parent, upon the same footing as children or grandchildren, and to change the common law to that extent. Duncan's Trustee v. Clay, 76 Ky. 48 , 1877 Ky. LEXIS 8 ( Ky. 1877 ).

The purpose and intent of this section was to change the common-law rule of presumption as to satisfaction of the devise, and allow proof of the intent of the gift and hence show a satisfaction. Swinebroad v. Bright, 110 Ky. 616 , 119 Ky. 684 , 62 S.W. 484, 23 Ky. L. Rptr. 55 , 1901 Ky. LEXIS 9 ( Ky. 1901 ).

The purpose of this section is to prevent a double portion. Louisville Trust Co. v. Southern Baptist Theological Seminary, 148 Ky. 711 , 147 S.W. 431, 1912 Ky. LEXIS 529 ( Ky. 1912 ).

2.Advancement.

Where parol proof shows that certain bonds were delivered to the devisee with intent to satisfy a legacy, it is a satisfaction of the legacy. Louisville Trust Co. v. Southern Baptist Theological Seminary, 148 Ky. 711 , 147 S.W. 431, 1912 Ky. LEXIS 529 ( Ky. 1912 ).

Where the testator paid for land and had the title conveyed to his daughters to whom he had made a bequest of $2,500 each in his will, the conveyances of the land were intended as a satisfaction of the bequests and should be so treated. Smith v. Cox's Committee, 156 Ky. 118 , 160 S.W. 786, 1913 Ky. LEXIS 384 ( Ky. 1913 ).

Where a testator subsequent to the making of his will gives his grandson, who is a devisee in the will and an heir at law, a sum of money, it is chargeable as a partial satisfaction of the devise or bequest to the extent of the amount so given. Gambill's Adm'r v. Gambill, 236 Ky. 491 , 33 S.W.2d 325, 1930 Ky. LEXIS 770 ( Ky. 1930 ).

3.— Intent.

The last clause of this section changes the common law so as to apply certain gifts to the satisfaction of devises or legacies, whether specific or general, and whether for a fixed or an uncertain sum, but it must be shown that a satisfaction in whole or in part was intended by the testator. Duncan's Trustee v. Clay, 76 Ky. 48 , 1877 Ky. LEXIS 8 ( Ky. 1877 ).

The testator bequeathed his daughter $1,000. Later on he gave her $1,000. In the settlement of the estate, the executor contended that the gift was a satisfaction of the legacy. It was held that the executor must allege and prove that such was the intent of the testator. Swinebroad v. Bright, 110 Ky. 616 , 119 Ky. 684 , 62 S.W. 484, 23 Ky. L. Rptr. 55 , 1901 Ky. LEXIS 9 ( Ky. 1901 ).

An advancement to a devisee in a will is not a satisfaction of the devise in whole or in part unless it is shown by parol or other evidence that the testator so intended it at the time the advancement was made. Stiff's Ex'r v. Stiff, 217 Ky. 716 , 290 S.W. 718, 1927 Ky. LEXIS 77 ( Ky. 1927 ).

Where the testator made his will giving his property to his children and then by deeds, attached to a codicil, gave land to certain children “to endow them with a part of his estate,” this language shows an intent on the part of the testator to charge these gifts against the shares of the children, to whom they were made, in his will, Traughber v. King, 235 Ky. 658 , 32 S.W.2d 8, 1930 Ky. LEXIS 431 ( Ky. 1930 ).

4.— Receipt from Recipient.

Where the testator stated in his will that his property was to be equally divided between his three daughters and that gifts previously made to either of them are not to be considered as advancements, and later gives his daughter a sum of money and takes a receipt showing that she received it as a part of her legacy under his will, the daughter should be charged with the sum received as a partial satisfaction of the legacy in the testator’s will. Nall v. Wright's Ex'rs, 80 S.W. 1120, 26 Ky. L. Rptr. 253 (1904).

5.— Against Residuary Estate.

Where testator, in second clause of will, bequeathed specific sum to named grandchildren, in fourth clause bequeathed to them one fourth of residuary estate, and in sixth clause provided that advancements made to their father should be considered as part of their share, “as provided in clause 4,” advancements were chargeable only against their share of residuary estate and not against the specific bequest. McGinnis v. Moore, 278 Ky. 587 , 129 S.W.2d 141, 1939 Ky. LEXIS 473 ( Ky. 1939 ).

6.— Interest.

Provision of will charging share of one devisee with advancements to him did not include interest on advancements. McGinnis v. Moore, 278 Ky. 587 , 129 S.W.2d 141, 1939 Ky. LEXIS 473 ( Ky. 1939 ).

Research References and Practice Aids

Cross-References.

Advancement, what deemed, effect, KRS 391.140 .

394.380. Pretermitted child — Provisions concerning. [Repealed.]

Compiler’s Notes.

This section (4847, 4848) was repealed by Acts 1972, ch. 168, § 17.

394.382. Share of pretermitted child.

  1. If a testator fails to provide in his will for any of his children born or adopted after the execution of his will, the omitted child receives a share in the estate equal in value to that which he would have received if the testator had died intestate unless:
    1. It appears from the will that the omission was intentional;
    2. When the will was executed the testator had one (1) or more children and devised substantially all his estate to the other parent of the omitted child; or
    3. The testator provided for the child by transfers outside the will and the intent that the transfers be in lieu of a testamentary provision is shown by statements of the testator or from the amount of the transfers or other evidence.
  2. In satisfying a share provided for in this section, such share shall be taken ratably from the interest of heirs, devisees and legatees.

History. Enact. Acts 1972, ch. 168, § 2.

NOTES TO DECISIONS

1.Child Provided For.

Where the testator devised specific land to his three living children, and then directed that his personal property was to be divided between two of his living children and such other children as might be born thereafter, and where decedent died survived by seven children, the after-born children were not pretermitted children as the testator provided for them in his will, and they took thereunder and shared in the distribution of the personal property only. Porter v. Porter's Ex'r, 120 Ky. 302 , 86 S.W. 546, 27 Ky. L. Rptr. 699 , 1905 Ky. LEXIS 103 ( Ky. 1905 ) (decided under prior law).

Where the testator devised a farm “to his children,” a child born six months after the death of the testator was a posthumous child and not a pretermitted child, and took a child’s share under the will of the testator. Lamar v. Crosby, 162 Ky. 320 , 172 S.W. 693, 1915 Ky. LEXIS 82 ( Ky. 1915 ) (decided under prior law).

2.Pretermitted Child’s Portion.

Where the testator devises a life estate to his wife and dies intestate as to the remainder or reversion, and a child is born after his death, such after-born child is entitled to his share of the reversion the same as children living at the time of the death of the testator. Sansberry's Ex'r v. McElroy & Rinehart, 69 Ky. 440 , 1869 Ky. LEXIS 179 ( Ky. 1869 ) (decided under prior law).

A pretermitted child inherits from its mother a child’s share of such of her estate as she has the power to dispose of by will as if she had died intestate. Wilkinson v. May, 198 Ky. 354 , 248 S.W. 887, 1923 Ky. LEXIS 453 ( Ky. 1923 ) (decided under prior law).

The portion of the pretermitted child shall be measured by what he would receive under the statutes of descent and distribution, but shall be made up by ratable contributions, approved by court order, from beneficiaries under the will. Mann v. Peoples-Liberty Bank & Trust Co., 256 S.W.2d 489, 1953 Ky. LEXIS 739 ( Ky. 1953 ) (decided under prior law).

Specific legatees under the will are required to contribute the ratable share of their respective legacies to make up the pretermitted child’s portion. Mann v. Peoples-Liberty Bank & Trust Co., 256 S.W.2d 489, 1953 Ky. LEXIS 739 ( Ky. 1953 ) (decided under prior law).

3.Dower.

The share of a pretermitted child is subject to the dower rights of the widow. Mann v. Peoples-Liberty Bank & Trust Co., 256 S.W.2d 489, 1953 Ky. LEXIS 739 ( Ky. 1953 ) (decided under prior law).

4.Estate Devised to Spouse.

Where the testator gave his entire estate in fee simple to his wife and did not mention a living child, which he had at the time the will was drawn, and a child was born immediately after the execution of the will, the will showed an intent to exclude all children born and after-born. Leonard v. Enochs, 92 Ky. 186 , 17 S.W. 437, 13 Ky. L. Rptr. 506 , 1891 Ky. LEXIS 142 ( Ky. 1891 ) (decided under prior law).

Where the testator devised and bequeathed all of his property to his wife stating that “If my wife has any children at my death, I desire that this will be the same, or that she have full control of all money arising from my property that I may have at my death,” and the testator had no children at the time of the execution of the will but a child was thereafter born, the after-born child took nothing under the will of the testator. Logan v. Bean's Adm'r., 120 Ky. 712 , 87 S.W. 1110, 27 Ky. L. Rptr. 1081 , 1905 Ky. LEXIS 159 (Ky. Ct. App. 1905) (decided under prior law).

5.Effect of Birth on Will.

Where the widow is given an absolute power of sale with reference to property devised in the will, the birth of a child after the execution of the will does not in any way affect that right. Taylor v. Lyon, 249 Ky. 398 , 60 S.W.2d 964, 1933 Ky. LEXIS 531 ( Ky. 1933 ) (decided under prior law).

Pretermission of a child does not invalidate the will or nullify the powers of the executors or trustees thereunder, and the share of the pretermitted child remains in control of the executors and trustees under the will. Mann v. Peoples-Liberty Bank & Trust Co., 256 S.W.2d 489, 1953 Ky. LEXIS 739 ( Ky. 1953 ) (decided under prior law).

6.Child of Afterborn Child.

Where the testator devised his land to his wife for life with remainder to their children, and there were after-born children, one of whom died survived by a child, the child of the after-born child and the children of the testator, after the death of the mother, owned the land as tenants in common. Stine v. Goodman, 92 S.W. 612, 29 Ky. L. Rptr. 221 (1906) (decided under prior law).

Research References and Practice Aids

Cross-References.

Posthumous child may take estate, KRS 381.140 .

Posthumous child to inherit, KRS 391.070 .

Words “without heirs,” “issue,” “children,” how construed, KRS 381.080 .

394.390. Child or grandchild believed to be dead, or whose birth is not known to testator. [Repealed.]

Compiler’s Notes.

This section (4842) was repealed by Acts 1972, ch. 168, § 17.

394.400. Issue of dead devisee or legatee take parent’s share.

If a devisee or legatee dies before the testator, or is dead at the making of the will, leaving issue who survive the testator, such issue shall take the estate devised or bequeathed, as the devisee or legatee would have done if he had survived the testator, unless a different disposition thereof is made or required by the will.

History. 4841.

NOTES TO DECISIONS

1.Construction.

This section changes the common-law rule that a devise to children does not embrace grandchildren, and makes such a devise or bequest include grandchildren. Sloan v. Thornton, 102 Ky. 443 , 43 S.W. 415, 19 Ky. L. Rptr. 1511 , 1897 Ky. LEXIS 102 ( Ky. 1897 ).

Where a devisee or legatee predeceases the testator and is survived by a child, the child has the same estate or interest under the will as the deceased devisee or legatee as if the bequest or devise had been made to the child, and takes under the will and not as an heir of the deceased devisee or legatee. Banks v. Cornelison, 159 Ky. 793 , 169 S.W. 502, 1914 Ky. LEXIS 888 ( Ky. 1914 ).

This section provides the only exception to the provisions of KRS 394.500 . Schmidt v. Halpin, 351 S.W.2d 57, 1961 Ky. LEXIS 136 ( Ky. 1961 ).

This section restricts the taking of an otherwise lapsed devise or bequest to the issue of a devisee or legatee who has died before the testator. Schmidt v. Halpin, 351 S.W.2d 57, 1961 Ky. LEXIS 136 ( Ky. 1961 ).

In order to constitute a “different disposition” as that term is used in the anti-lapse statutes, the intention of the testator must be expressed in the will itself since any other construction would destroy the harmony of the anti-lapse scheme as a whole by creating inconsistencies in some cases. Murray v. Murray, 564 S.W.2d 5, 1978 Ky. LEXIS 344 ( Ky. 1978 ).

2.Application.

The deceased beneficiary must be survived by “issue” for this section to be applicable. Buckler v. Supreme Council, C. K. A., 143 Ky. 618 , 136 S.W. 1006, 1911 Ky. LEXIS 451 ( Ky. 1911 ).

This section has no application where the devisee or legatee in an instrument of a testamentary character outlives the testator. Conn v. White, 189 Ky. 185 , 224 S.W. 764, 1920 Ky. LEXIS 398 ( Ky. 1920 ).

The operation of this section is limited to the issue of the devisee or legatee, and collateral kindred or relations created by adoption are not within the purview of the statute. Bourne's Ex'r v. Edwards, 223 Ky. 35 , 2 S.W.2d 1053, 1928 Ky. LEXIS 278 ( Ky. 1928 ).

This section is only applicable where an estate in fee is devised. Owsley v. Gilbert, 262 Ky. 798 , 91 S.W.2d 513, 1936 Ky. LEXIS 102 ( Ky. 1936 ).

The provisions of the anti-lapse statute do not apply to collateral relatives or beneficiaries of decedents leaving no issue. Belew v. Sharp, 696 S.W.2d 788, 1985 Ky. App. LEXIS 531 (Ky. Ct. App. 1985).

This section did not apply where contesting heirs’ interest in the estate was solely dependent upon the happening of a condition precedent, the joint testator’s simultaneous death in a common disaster. Ratliff v. Higgins, 851 S.W.2d 455, 1993 Ky. LEXIS 6 ( Ky. 1993 ).

KRS 394.400 , 394.410 did not require that the children/grandchildren of predeceased named beneficiaries inherit under a will because the will unambiguously expressed the intention that the beneficiaries survive the decedent in order to inherit under the will. McGowan v. Bogle, 331 S.W.3d 642, 2011 Ky. App. LEXIS 21 (Ky. Ct. App. 2011).

3.Issue.

Where a devisee is dead at time of making of will and is survived by issue, such issue takes what his father would have taken had father been living at time of death of testator. Chenault's Guardian v. Chenault's Estate, 88 Ky. 83 , 11 S.W. 424, 10 Ky. L. Rptr. 840 , 1888 Ky. LEXIS 138 ( Ky. 1888 ) (decided under prior law).

The word “issue” as used in this section is not synonymous with the word “heir,” and hence the surviving mother of an illegitimate child does not take under a will where the child predeceased the testator. Slone v. Mason Coal & Coke Co., 168 Ky. 697 , 182 S.W. 929, 1916 Ky. LEXIS 618 ( Ky. 1916 ).

The word “issue” in this section means lineal descendants of the devisee, in contradistinction to collateral or ascending heirs. Dillender v. Wilson, 228 Ky. 758 , 16 S.W.2d 173, 1929 Ky. LEXIS 657 ( Ky. 1929 ).

The will of a wife, leaving everything to her husband who predeceased her leaving no issue, was ineffectual to pass property to husband’s heirs, since “issue,” within the meaning of this section, does not include other heirs. Driskill v. Driskill's Adm'r, 307 Ky. 627 , 211 S.W.2d 840, 1948 Ky. LEXIS 792 ( Ky. 1948 ).

The word “issue” as used in this section includes only lineal descendants of the legatee or devisee and not collateral or ascending heirs. Schmidt v. Halpin, 351 S.W.2d 57, 1961 Ky. LEXIS 136 ( Ky. 1961 ).

4.— Presumption Against Disinheritance.

In the absence of plain and explicit language to the contrary, it will not be presumed that a testator intended to disinherit the issue of his deceased child. Cook v. Cook, 292 Ky. 53 , 165 S.W.2d 971, 1942 Ky. LEXIS 28 ( Ky. 1942 ).

The recital in a will’s residuary clause that the residue is to include lapsed and failed gifts is not by itself sufficient evidence of a testator’s contrary intent to overcome the strong presumption against lapse provided by this section. Blevins v. Moran, 12 S.W.3d 698, 2000 Ky. App. LEXIS 14 (Ky. Ct. App. 2000).

5.— Illegitimate Child.

An illegitimate child is the “issue” of the mother, and takes the share of the estate that the mother would have been taken under the will of her father if she had survived her father. Cherry v. Mitchell, 108 Ky. 1 , 55 S.W. 689, 21 Ky. L. Rptr. 1547 , 1900 Ky. LEXIS 1 ( Ky. 1 900 ).

6.— Deceased Devisee.

Where the testator devised his estate to his wife and she predeceased him survived by children and grandchildren, the children and grandchildren took not as heirs at law of the father but as legatees directly under the will. Thompson v. Myers, 95 Ky. 597 , 26 S.W. 1014, 16 Ky. L. Rptr. 139 , 1894 Ky. LEXIS 73 ( Ky. 1894 ).

Where the testator devised his property to his “brothers and sisters,” and had only one living brother and five living sisters at the time the will was drawn and had two brothers and a sister dead at that time, all of whom were survived by children, the children of the deceased brothers and the sister take as devisees under the will. Fuller v. Martin, 96 Ky. 500 , 29 S.W. 315, 16 Ky. L. Rptr. 576 , 1895 Ky. LEXIS 106 ( Ky. 1895 ).

Where the testatrix devised property to the children of her deceased uncle, who were unknown to her, the use of the word “children” is synonymous with the word “heirs,” and the children of the children of the deceased uncle take the devise. Sloan v. Thornton, 102 Ky. 443 , 43 S.W. 415, 19 Ky. L. Rptr. 1511 , 1897 Ky. LEXIS 102 ( Ky. 1897 ).

Where a testator left his wife a life estate with the remainder to his children and one of the children dies before the testator, leaving children of his own, these children were entitled to their father’s share. Ruff v. Baumbach, 114 Ky. 336 , 70 S.W. 828, 24 Ky. L. Rptr. 1167 , 1902 Ky. LEXIS 160 ( Ky. 1902 ).

Where the testator bequeathed to his wife $1,000, and she predeceased him survived by two sons by a former marriage, her sons took the bequest made to their mother, and extrinsic evidence is not admissible to show that the bequest comes under the last and qualifying clause of this section. Nance's Ex'rs v. Akers, 165 Ky. 461 , 177 S.W. 235, 1915 Ky. LEXIS 538 (Ky. Ct. App. 1915).

Where the testator devised property to the children of his brothers and sister whom he knew were dead at the time the will was executed, the surviving children of the deceased children of the brothers and sister take what their respective parents would have taken under will had they been living at the time the will was executed and survived the testator. Carter v. Carter, 208 Ky. 291 , 270 S.W. 760, 1925 Ky. LEXIS 271 ( Ky. 1925 ).

Where the husband devised all of his property to his wife in fee simple estate and then the rest and residue of his estate to his daughter, and the wife predeceased the testator survived by the daughter, the daughter takes a fee simple estate in the entire estate of the testator, the devise to her being ineffective because of the fee simple devise to her mother. Wells v. Jewell, 232 Ky. 92 , 22 S.W.2d 414, 1929 Ky. LEXIS 397 ( Ky. 1929 ). See Whicker v. Strong, 258 Ky. 135 , 79 S.W.2d 388, 1935 Ky. LEXIS 114 ( Ky. 1935 ).

Where a testator in the fourth clause of his will made definite bequests to the heirs of his deceased daughter, and in the sixth clause gave the remainder to his children, the children of the deceased daughter take under the sixth clause also. Abney v. Pearson, 255 Ky. 394 , 74 S.W.2d 465, 1934 Ky. LEXIS 247 ( Ky. 1934 ).

Where the testator devised the sum of $7,500 to his foster daughter and she predeceased the testator survived by children, the surviving children assume the position of their mother and take what their mother would have taken under the testator’s will had she survived him. Knebelkamp v. Acosta, 272 Ky. 506 , 114 S.W.2d 737, 1938 Ky. LEXIS 149 ( Ky. 1938 ).

Where a will left property to the testator’s wife if she survived him and to his brother in the event that the wife did not so survive, and the brother died before the wife who also died before the testator, the descendants of the brother were entitled to the property under this section. Taylor v. Minish, 374 S.W.2d 837, 1964 Ky. LEXIS 388 ( Ky. 1964 ).

In the absence of a “different disposition” in the will, the property originally devised to the decedent’s father must pass under the father’s “issue” or “descendants” and his natural grandson and adoptive granddaughters all clearly qualify and were accordingly each entitled to one third of the share devised to the father. Murray v. Murray, 564 S.W.2d 5, 1978 Ky. LEXIS 344 ( Ky. 1978 ).

7.— — Insurance Proceeds.

Where the beneficiary named in an insurance policy in a fraternal organization predeceases the insured leaving children, the children assume the place of their deceased parent and take under this section. Supreme Council, C. K. A. v. Densford, 56 S.W. 172, 21 Ky. L. Rptr. 1574 , 1900 Ky. LEXIS 476 (Ky. Ct. App. 1900).

8.Lineal Descendants.

The terms “issue” and “descendants” both refer to lineal descendants of the devisee or legatee only, and do not encompass collateral or ascending relations. Murray v. Murray, 564 S.W.2d 5, 1978 Ky. LEXIS 344 ( Ky. 1978 ).

9.First Cousins.

The children of the decedent’s first cousin did not have an interest in the estate where the will devised property “to my first cousins living at the time of my death”, where there is no statutory provision defining “first cousins” to include children of first cousins, it has been consistently held that testamentary gifts to “first cousins” must only include those who are first cousins in the strict and technical sense, namely, the children of an uncle or aunt, and the language employed by the deceased was sufficient to evidence his intent to include only those first cousins surviving at his death. Slattery v. Kelsch, 734 S.W.2d 813, 1987 Ky. App. LEXIS 519 (Ky. Ct. App. 1987).

10.Effect of Disclaimer.

Individual’s disclaimer of his interest in his father’s estate did not serve to deprive that individual’s three children of their interest in their grandfather’s estate; their claim was under the will of their grandfather, having statutorily come into being by virtue of the Deed of Disclaimer executed by their father. Ernst v. Shaw, 783 S.W.2d 400, 1990 Ky. App. LEXIS 6 (Ky. Ct. App. 1990).

Cited:

Park v. McCombs, 146 Ky. 327 , 142 S.W. 401, 1912 Ky. LEXIS 55 ( Ky. 1912 ); Skiles v. Bowling Green Trust Co., 294 Ky. 211 , 171 S.W.2d 235, 1943 Ky. LEXIS 410 ( Ky. 1943 ); Maingault’s Adm’r v. Carrithers, 295 Ky. 654 , 175 S.W.2d 129, 1943 Ky. LEXIS 315 ( Ky. 1943 ); Taylor v. Minish, 374 S.W.2d 837, 1964 Ky. LEXIS 388 ( Ky. 1964 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Bratt, Property, 73 Ky. L.J. 459 (1984-85).

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

394.410. Death of part of group of devisees before testator — Children includes grandchildren.

  1. When a devise is made to several as a class or as tenants in common, and one (1) or more of the devisees die before the testator, and another or others survive the testator, the share or shares of such as so die shall go to his or their descendants, if any; if none, to the surviving devisees, unless a different disposition is made by the devisor.
  2. A devise to children embraces grandchildren when there are no children, and no other construction will give effect to the devise.
  3. If a devise is made to several as joint tenants with right of survivorship and one (1) or more of the devisees dies before the testator and another or others survive the testator, the share or shares of such as so die shall go to such as so survive. Provided, however, in the event of the death of all the joint tenants before the death of the testator, the order of death of the joint tenants shall not affect the devolution of the property and, in this case, devolution shall be governed by subsection (1) hereof, as if the devise had been made to the deceased devisees as tenants in common.

History. 2064: amend. Acts 1972, ch. 168, § 14.

NOTES TO DECISIONS

1.Application.

This section has no application where specific property is devised to designated children, and not as a class, or tenants in common, or joint tenants. Golladay v. Thomas, 111 S.W. 721, 33 Ky. L. Rptr. 829 (1908), overruled, Settle v. Vercamp, 485 S.W.2d 251, 1972 Ky. LEXIS 128 ( Ky. 1972 ).

This section is applicable only where the devisee in an instrument of a testamentary character predeceases the testator. Conn v. White, 189 Ky. 185 , 224 S.W. 764, 1920 Ky. LEXIS 398 ( Ky. 1920 ).

This section has no application to a case where a devise is made in remainder, following a life estate, to members of a class, and some of the members of the class die before the expiration of the life estate. Skiles v. Bowling Green Trust Co., 294 Ky. 211 , 171 S.W.2d 235, 1943 Ky. LEXIS 410 ( Ky. 1943 ).

Where there were no words of survivorship, no equal rights to the possession of the whole estate, and no class because there were no words in the will to show testator intended to treat them in any way other than as specific persons, the residuary legatees were not joint tenants, tenants in common, or members of a class and, thus, did not come within this section. Shoenberg v. Lodenkemper's Ex'r, 314 Ky. 105 , 234 S.W.2d 501, 1950 Ky. LEXIS 1042 ( Ky. 1950 ). See Gullett v. D. D. Gullett's Adm'r, 275 S.W.2d 945, 1954 Ky. LEXIS 1253 ( Ky. 1954 ).

KRS 394.400 , 394.410 did not require that the children/grandchildren of predeceased named beneficiaries inherit under a will because the will unambiguously expressed the intention that the beneficiaries survive the decedent in order to inherit under the will. McGowan v. Bogle, 331 S.W.3d 642, 2011 Ky. App. LEXIS 21 (Ky. Ct. App. 2011).

2.Descendants.

“Descendants,” in this section, means those who have issued from an individual, and includes his children, grandchildren and their children to the remotest degree. Holloway v. Brown, 181 Ky. 716 , 205 S.W. 925, 1918 Ky. LEXIS 615 ( Ky. 1918 ).

In the absence of a “different disposition” in the will, the property originally devised to the decedent’s father must pass under the father’s “issue” or “descendants” and his natural grandson and adoptive granddaughters all clearly qualify and were accordingly each entitled to one third of the share devised to the father. Murray v. Murray, 564 S.W.2d 5, 1978 Ky. LEXIS 344 ( Ky. 1978 ).

The terms “issue” and “descendants” both refer to lineal descendants of the devisee or legatee only, and do not encompass collateral or ascending relations. Murray v. Murray, 564 S.W.2d 5, 1978 Ky. LEXIS 344 ( Ky. 1978 ).

3.Class.

Where a devise is to several as a class, and one member of the class is dead at the time the will is made and is survived by issue, such issue takes what the parent would have taken had he survived the testator. Chenault's Guardian v. Chenault's Estate, 88 Ky. 83 , 11 S.W. 424, 10 Ky. L. Rptr. 840 , 1888 Ky. LEXIS 138 ( Ky. 1888 ) (decided under prior law).

Maker of a will may create a class of devisees composed of a less number than the total members of the natural class to which they belong. Horseman v. Horseman, 309 Ky. 289 , 217 S.W.2d 645, 1949 Ky. LEXIS 694 ( Ky. 1949 ).

Where testator devised life estate in realty to wife with remainder over to three of four sons, and in another clause of will expressed intention that fourth son should get nothing, the share of one of the three sons, who predeceased testator unmarried, was disposed of according to the provisions of this section, and not according to provisions of KRS 394.500 as contended for by fourth son. Horseman v. Horseman, 309 Ky. 289 , 217 S.W.2d 645, 1949 Ky. LEXIS 694 ( Ky. 1949 ).

Where a will makes a gift to named persons, it is a gift to individuals, even though the persons named constitute a natural class, unless the language of the will as a whole affirmatively shows that a class gift was intended. Church v. Gibson, 286 S.W.2d 91, 1955 Ky. LEXIS 94 ( Ky. 1955 ).

Option to purchase real property given to a named beneficiary under a will who predeceased the testator passed to the surviving optionees because the language in the testator’s will was a reasonably clear expression of the testator’s intent for the option to purchase the property to pass to a class of the testator’s relatives. Therefore, because one named beneficiary predeceased the testator, the beneficiary did not receive that opportunity, and it passed to the other members of the class. Reynolds v. Reynolds, 434 S.W.3d 510, 2014 Ky. App. LEXIS 85 (Ky. Ct. App. 2014).

4.— Devise to Brothers and Sisters.

A devise to the “brothers and sisters” where the testator had one sister and one half-sister and several brothers is a devise to the class, and the children of the half-sister, who predeceased the testator, take the share she would have taken had she survived the testator. Barnhill v. Sharon, 135 Ky. 70 , 121 S.W. 983, 1909 Ky. LEXIS 265 ( Ky. 1909 ).

Where a will provided that on the death of the life tenant without issue, two thirds of the estate was to pass to the testator’s four brothers “and the issue of such of them as may be dead, leaving issue, per stirpes,” a class was created, and no intestacy resulted by reason of the death of one brother prior to the death of the life tenant. Combs v. First Sec. Nat'l Bank & Trust Co., 431 S.W.2d 719, 1968 Ky. LEXIS 373 ( Ky. 1968 ).

5.— Effect of Intervening Estate.

Where the grantor deeded land to his daughter for life and then to such of her children as then may be living, and the daughter died survived by one child and several grandchildren, the grandchildren take the share that would have been taken by their respective parent had such parent survived the life tenant. Harrington v. Gibson, 109 Ky. 752 , 60 S.W. 915, 22 Ky. L. Rptr. 1486 , 1901 Ky. LEXIS 46 ( Ky. 1901 ).

Where the testator bequeathed and devised his property to his wife for life and then “to my living children,” and one child predeceased the life tenant survived by a child, the child takes the share that his parent would have taken had he survived the life tenant. Evans v. Henderson, 68 S.W. 640, 24 Ky. L. Rptr. 363 , 1902 Ky. LEXIS 305 (Ky. Ct. App. 1902).

Where testator devised farm to his widow for life, and upon her death to trustees to be sold and the proceeds to be distributed among the children of his aunts, and it was stated in the will that farm had come to testator from his grandfather and he wanted proceeds to go to lineal descendants of his grandfather, it was held that only persons entitled to take under the will were those who were living at time of termination of life estate. Skiles v. Bowling Green Trust Co., 294 Ky. 211 , 171 S.W.2d 235, 1943 Ky. LEXIS 410 ( Ky. 1943 ).

Generally, where under the provisions of a will a gift to a class is postponed until after termination of a preceding estate, only those members of the class take who are in existence when such preceding estate terminates and the time for distribution comes. White v. Citizens Fidelity Bank & Trust Co., 313 Ky. 230 , 230 S.W.2d 899, 1950 Ky. LEXIS 850 ( Ky. 1950 ).

6.— Devisee Dead at Time of Will.

Where the testator directs that his estate shall be divided into five equal parts and one part allotted to each of his five brothers and sisters, and at the death of the life tenants or any of them the share of the one dying to be divided between all of his nephews and nieces, and if any nephews or nieces be dead his share to go to his children, and the testator has a dead brother and dead nephews and nieces at the time of the making of the will, the children of the dead nephews and nieces take under the will. Dehaven v. Oglesby, 38 S.W. 145, 18 Ky. L. Rptr. 719 (1896).

7.— Joint Tenants or Tenants in Common.

Where a devise is made to the children as joint tenants and one of the children predeceases the testator, leaving no issue, his share is to be equally divided among the survivors of the class. Melton v. Sellars, 167 Ky. 704 , 181 S.W. 346, 1916 Ky. LEXIS 464 ( Ky. 1916 ).

Where devise was to the testator’s two full brothers and his half-brother, naming them, “share and share alike, making no distinction between them,” and the half-brother died without descendants, his share went to the surviving half-brothers. Holloway v. Brown, 181 Ky. 716 , 205 S.W. 925, 1918 Ky. LEXIS 615 ( Ky. 1918 ).

The testator devised: “The remainder of my property to be equally divided between sister Charlotte C., brother David and brother Thomas C.” It is a devise to these persons as tenants in common or joint tenants, and upon the death of one the devise goes to the survivor. Morison v. Meade, 204 Ky. 86 , 263 S.W. 768, 1924 Ky. LEXIS 437 ( Ky. 1924 ). See Holland v. Holland's Ex'r, 238 Ky. 841 , 38 S.W.2d 967, 1931 Ky. LEXIS 319 ( Ky. 1931 ).

Where devises or bequests are to persons as tenants in common or joint tenants, and all the devisees predecease the testator and only one of them is survived by children, the others having died without children, the surviving children take the entire remainder. Morison v. Meade, 204 Ky. 86 , 263 S.W. 768, 1924 Ky. LEXIS 437 ( Ky. 1924 ).

Where the testatrix devised one third of the residue to each of two brothers, naming each of them, “absolutely and forever” and the remaining in trust for one of her sisters, and one of the brothers predeceased the testatrix with no surviving issue, the one third intended for the deceased brother passed to the surviving brother and sister as “tenants in common” or “joint tenants.” Lally v. Lally's Adm'r, 257 Ky. 105 , 77 S.W.2d 423, 1934 Ky. LEXIS 531 ( Ky. 1934 ).

It is competent for one to create by his or her will a class of devisees so as to make them joint tenants or tenants in common of the property devised to the class in the proportion of each member as directed in the will. Horseman v. Horseman, 309 Ky. 289 , 217 S.W.2d 645, 1949 Ky. LEXIS 694 ( Ky. 1949 ).

8.Intestate Succession.

Devise of residuary estate “in equal shares” to three named persons was not a devise to a class or to persons as tenants in common or joint tenants, so where one of the devisees predeceased the testator, her share passed as intestate property, and did not go to the surviving residuary devisees. McLeod v. Andrews, 303 Ky. 46 , 196 S.W.2d 473, 1946 Ky. LEXIS 758 ( Ky. 1946 ).

In a bequest to named friends, testatrix used no words that they be considered as a class, nor words of survivorship to be joint tenants, and since they had no right to an undivided portion of the whole and could not be tenants in common, the share of the deceased friend passed under the laws of intestate succession, KRS 394.500 , rather than to the remaining friends. Shoenberg v. Lodenkemper's Ex'r, 314 Ky. 105 , 234 S.W.2d 501, 1950 Ky. LEXIS 1042 ( Ky. 1950 ).

9.Devise to Children.

Where the testator divided his property between the children of his brothers and sisters “now living,” and he knew that one sister had no living children but had living grandchildren and also that some of the children of the brothers were dead survived by children, the word “children” embraced grandchildren of the brothers and sisters of the testator. Carter v. Carter, 208 Ky. 291 , 270 S.W. 760, 1925 Ky. LEXIS 271 ( Ky. 1925 ).

The word “children” does not include grandchildren unless it plainly appears that such was the meaning from other provisions of the will, or that such a construction must necessarily be given to the will so as to give effect to the grant or devise. Cooper v. Cooper, 392 S.W.2d 662, 1965 Ky. LEXIS 288 ( Ky. 1965 ).

10.— Remainderman Predeceases Life Tenant.

Where the testatrix devised her land to her daughter for life and then to any child or children that might be living at the time of the death of the life tenant, and the life tenant died survived by a son and a grandson, the son of a son of the life tenant who predeceased the life tenant, it was held that the grandson took the share of the property intended for his father as this was the intent of the testatrix. Tucker v. Tucker, 259 Ky. 361 , 82 S.W.2d 458, 1935 Ky. LEXIS 321 ( Ky. 1935 ).

Where the testator devised his property to his wife for life with remainder to his three daughters, with the provision if one of the daughters died leaving surviving children the children would take the share of the deceased parent or ancestor, and one of the daughters died survived by a grandchild, it was held that the share of the daughter went to her grandchild and not to a surviving sister. Hodge v. Lovell's Trustee, 262 Ky. 509 , 90 S.W.2d 683, 1936 Ky. LEXIS 45 ( Ky. 1936 ).

11.— Devisee Dies Without Heirs.

Where the testator devised and bequeathed real and personal property to his children, naming them, and one of the children predeceased the testator without descendants, the share intended for her went to the surviving children. Auxier's Ex'x v. Theobald, 255 Ky. 583 , 75 S.W.2d 39, 1934 Ky. LEXIS 296 ( Ky. 1934 ).

12.— Revocation of One Child’s Share.

Where the testatrix devised her residuary estate to her three sons, naming them, then one of the sons died survived by a child and the testatrix added a codicil revoking the devise to her deceased son and his family, the effect of the codicil was to revoke the devise to the deceased son, and the residuary estate went under the will to the two surviving sons. Goodloe's Ex'r v. Fuller, 207 Ky. 765 , 270 S.W. 23, 1925 Ky. LEXIS 179 ( Ky. 1925 ).

13.“Heirs of His Body.”

Where the testator devised land to his son for life and then to “the heirs of his body,” such language will be interpreted to mean children of the son where the will shows that such construction was meant by the testator, and the grandchildren of the son will take such a portion under the will as their mother would have taken had she survived the son of the testator. Whittaker v. Fitzpatrick, 268 Ky. 120 , 103 S.W.2d 670, 1937 Ky. LEXIS 409 ( Ky. 1937 ).

14.Different Disposition.

In order to constitute a “different disposition” as that term is used in the anti-lapse statutes, the intention of the testator must be expressed in the will itself since any other construction would destroy the harmony of the anti-lapse scheme as a whole by creating inconsistencies in some cases. Murray v. Murray, 564 S.W.2d 5, 1978 Ky. LEXIS 344 ( Ky. 1978 ).

15.Devise to First Cousins.

The children of the decedent’s first cousin did not have an interest in the estate where the will devised property “to my first cousins living at the time of my death”, where there is no statutory provision defining “first cousins” to include children of first cousins, it has been consistently held that testamentary gifts to “first cousins” must only include those who are first cousins in the strict and technical sense, namely, the children of an uncle or aunt, and the language employed by the deceased was sufficient to evidence his intent to include only those first cousins surviving at his death. Slattery v. Kelsch, 734 S.W.2d 813, 1987 Ky. App. LEXIS 519 (Ky. Ct. App. 1987).

Cited:

Holloway v. Brown, 181 Ky. 716 , 205 S.W. 925, 1918 Ky. LEXIS 615 ( Ky. 1918 ); Maingault’s Adm’r v. Carrithers, 295 Ky. 654 , 175 S.W.2d 129, 1943 Ky. LEXIS 315 ( Ky. 1943 ); McLeod v. Andrews, 303 Ky. 46 , 196 S.W.2d 473, 1946 Ky. LEXIS 758 ( Ky. 1946 ); Pimpel v. Pimpel, 253 S.W.2d 613, 1952 Ky. LEXIS 1112 , 35 A.L.R.2d 1092 ( Ky. 1952 ); Pennington v. Citizens Fidelity Bank & Trust Co., 390 S.W.2d 671, 1965 Ky. LEXIS 370 ( Ky. 1965 ); Cooper v. Cooper, 392 S.W.2d 662, 1965 Ky. LEXIS 288 ( Ky. 1965 ).

Research References and Practice Aids

Cross-References.

Distribution in case of simultaneous deaths, KRS 397.1001 to 397.1009 .

Northern Kentucky Law Review.

Kentucky Law Survey, Youngs, A Compen- dium of Cases on Future Interests in Kentucky, 6 N. Ky. L. Rev. 283 (1979).

394.420. Contribution, when devised estate used for payment of testator’s debt.

  1. When any devised estate, real or personal, is taken from the devisee for the payment of a debt of the testator, or one (1) of the devisees pays such debt to save his devise, each of the other devisees shall contribute his proportion of the debt, interest, and costs to the person paying the same, according to the value received by him.
  2. If the testator has, by will, made other provision for the payment of his debts, subsection (1) shall not apply except to the extent that such provision and the testator’s undevised estate is deficient. The remedy of such devisee in the first instance shall be against the person holding the provision, and against the undevised estate.

History. 2073, 2074.

NOTES TO DECISIONS

1.Contribution.

The devisee may pay the debt of his testator and seek contribution from the other heirs under the will. He need not wait until a judgment is taken against him in order to hold the other heirs liable for contribution, but in doing so he runs the risk of paying an obligation that he is not legally obligated to pay. Ferguson v. Worrall, 125 Ky. 618 , 101 S.W. 966, 31 Ky. L. Rptr. 219 , 1907 Ky. LEXIS 317 ( Ky. 1907 ).

Where the testator bequeathed all of his personalty to his sister and a life interest in his realty, and specifically devised the remainder interest in the realty to others, leaving no residuary estate or provision for the payment of his debts and the payment of the debts consumed the personalty, the sister is entitled to contribution from the other devisees in the will. Dorn v. Fidelity & Columbia Trust Co., 204 Ky. 211 , 263 S.W. 681, 1924 Ky. LEXIS 399 ( Ky. 1924 ).

2.Debts of Original Testator.

One who received land by devise from the original devisee is liable for the debts of the original testator, as he assumes the place of his immediate ancestor. Ferguson v. Worrall, 125 Ky. 618 , 101 S.W. 966, 31 Ky. L. Rptr. 219 , 1907 Ky. LEXIS 317 ( Ky. 1907 ).

3.Mortgaged Property.

Where land is devised upon which there is a lien for a debt, the devisee is entitled to have the debt paid out of the personal estate of the deceased. Blanchard v. Herbert, 5 Ky. Op. 8, 1871 Ky. LEXIS 299 (Ky. Ct. App. Nov. 14, 1871) (decided under prior law).

Where the testator devises mortgaged property and makes no provision with reference to the payment of his debts, and does not provide that the devisee shall assume the mortgage, the devisee is entitled to contribution from the other devisees and legatees after the payment of the mortgage debt. Dorn v. Fidelity & Columbia Trust Co., 204 Ky. 211 , 263 S.W. 681, 1924 Ky. LEXIS 399 ( Ky. 1924 ).

4.Specifically Devised Property Ratably Charged.

Where the testator makes specific devises of certain of his personal property and all of his real property, and there is not sufficient estate in the hands of the executor to pay the debts of the deceased, the specifically devised property should be ratably charged according to its value with the payment of the remaining indebtedness. Young v. Madison's Ex'r, 252 Ky. 99 , 66 S.W.2d 1, 1933 Ky. LEXIS 987 ( Ky. 1933 ).

5.General Legacies.

Where the testator specifically devised his realty and most of his personalty, not leaving enough to pay general legacies or all of his debts, contribution cannot be had from the specific devisees to pay the general legacies. Young v. Madison's Ex'r, 252 Ky. 99 , 66 S.W.2d 1, 1933 Ky. LEXIS 987 ( Ky. 1933 ).

6.Advancement Mortgaged.

Where the father makes an advancement to his son by deed with general warranty of title, and it is afterwards discovered that the father had made a mortgage upon the land, the son may recover against the estate the amount of the mortgage upon the land but he must contribute his share toward satisfying the mortgage. Polley's Ex'rs v. Polley, 82 Ky. 64 , 5 Ky. L. Rptr. 801 , 1884 Ky. LEXIS 39 (Ky. Ct. App. 1884) (decided under prior law).

Cited:

Ruh’s Ex’rs v. Ruh, 270 Ky. 792 , 110 S.W.2d 1097, 1937 Ky. LEXIS 170 ( Ky. 1937 ); Bennett v. Ditto, 204 S.W.3d 145, 2006 Ky. App. LEXIS 294 (Ky. Ct. App. 2006).

Research References and Practice Aids

Cross-References.

Contribution by co-obligors, KRS Ch. 412.

394.430. Residuary and other legatees not entitled to contribution.

A residuary legatee, or legatee after or subject to the payment of debts, or a devisee to whom an estate has or shall be devised to pay debts, shall not, after paying such debts, be entitled to contribution.

History. 2075.

NOTES TO DECISIONS

1.Contribution from Specific Devisee.

If a residuary legatee pays the debts, he is not entitled to contribution from a specific devisee under this section. Powell's Adm'r v. Powell, 261 Ky. 705 , 88 S.W.2d 694, 1935 Ky. LEXIS 722 ( Ky. 1935 ).

394.440. Specific and general devises — Distinction.

As respects the payment of the testator’s debts, there shall be no distinction between specific and general devises except as provided in this chapter.

History. 2076.

NOTES TO DECISIONS

1.Liability for Debts.

Property of a testator is liable for debts and costs of administration in the following order: (1) the general personal estate; (2) the estate specifically and expressly devised for the payment of debts; (3) the undevised estate that descends to the heirs; (4) the estate specifically devised even though generally charged with the payment of debts. Lapsed legacies which pass as intestate property under KRS 394.500 are liable for debts and costs of administration before the residuary estate. Northcutt's Ex'x v. Farmers Nat'l Bank, 292 Ky. 628 , 166 S.W.2d 971, 1942 Ky. LEXIS 110 ( Ky. 1942 ).

394.450. Contribution when title to estate devised to heir fails.

When any real or personal estate is devised to any heir at law of the testator, and the title to the estate, or any part thereof, proves invalid, such devisee shall have contribution from the others, unless it appears from the will that such was not the intention of the testator.

History. 2077.

NOTES TO DECISIONS

1.Contribution by General Devisees.

This section is an extension of the common-law equitable principle of contribution by general devisees to cover failure of title to specific devisees. Weindl v. Weindl, 359 S.W.2d 333, 1962 Ky. LEXIS 199 ( Ky. 1962 ).

Where testator believed that he owned the fee simple in certain real estate and tried to devise it when in fact the property was held by the entireties with his wife, the trial court properly found that the residual beneficiary under the will was indebted to the specific devisee of the property for the value of the property. Weindl v. Weindl, 359 S.W.2d 333, 1962 Ky. LEXIS 199 ( Ky. 1962 ).

2.Purchaser from Devisee.

The right of contribution is given to the devisee who loses his land because of a paramount title. Such a right passes to his heir, but does not pass to a purchaser from the devisee. Jones v. Bigstaff, 95 Ky. 395 , 25 S.W. 889, 15 Ky. L. Rptr. 821 , 1894 Ky. LEXIS 38 ( Ky. 1894 ).

Cited:

Andrew’s Ex’x v. Spruill, 271 Ky. 516 , 112 S.W.2d 402, 1937 Ky. LEXIS 254 ( Ky. 1937 ); Kentucky Trust Co. v. Kessel, 464 S.W.2d 275, 1971 Ky. LEXIS 488 ( Ky. 1971 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Dower and Curtesy Exemption, § 254.00.

394.460. Posthumous child — How share made up.

When a testator shall have a posthumous child, the share of such child shall be first taken from the estate not disposed of by the will, if any be left after paying debts and other charges, and the residue shall be made up ratably by the devisees.

History. 2078.

Research References and Practice Aids

Cross-References.

Posthumous child, inheritance by, KRS 391.070 .

394.470. Posthumous child to make contribution.

A posthumous child shall be considered a devisee under the law of contribution and entitled to all his rights, and liable to all his responsibilities.

History. 2079.

394.480. Contribution when curtesy or dower taken from devise.

  1. When a widower’s curtesy or widow’s dower is taken, or the survivor’s portion is made up, in whole or in part, from the estate devised to a devisee, such devisee shall have contribution on the principles of KRS 394.420 to 394.490 unless the will otherwise directs, or it is necessarily to be inferred therefrom that the testator intended the same to fall on such devisee.
  2. When a widower or widow loses his jointure by a defect of title, or renounces it in legal manner, and his dower, curtesy or portion is assigned or made up in whole or in part from the estate devised to a devisee, that devisee shall have contribution on the principles of KRS 394.420 to 394.490 .

History. 2081, 2082: amend. Acts 1974, ch. 386, § 87.

NOTES TO DECISIONS

1.Widow Renounces Will.

Where the testator bequeathed certain personal property to his grandson and the widow renounces the will causing the grandson to suffer loss, the grandson is entitled to contribution for such loss from the other devisees in proportion to the value of the estate received by them under the will, and in such loss the grandson will bear his like proportionate part. Ruh's Ex'rs v. Ruh, 270 Ky. 792 , 110 S.W.2d 1097, 1937 Ky. LEXIS 170 ( Ky. 1937 ).

Research References and Practice Aids

Cross-References.

Loss of jointure, indemnity, KRS 392.120 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Dower and Curtesy Exemption, § 254.00.

394.490. Law as to property devised subject to lien.

KRS 394.420 to 394.490 shall not affect any statutory provision in relation to property devised which may be subject to a lien.

History. 2083.

NOTES TO DECISIONS

1.Construction.

This section is not a limitation upon KRS 394.420 , and should not be construed to mean that devisees of property subject to a mortgage are not entitled to contribution to discharge the same. Dorn v. Fidelity & Columbia Trust Co., 204 Ky. 211 , 263 S.W. 681, 1924 Ky. LEXIS 399 ( Ky. 1924 ).

394.500. Void or lapsed devise included in residuary devise.

Unless a contrary intention appears from the will, real or personal estate, comprised in a devise or bequest incapable of taking effect, shall be included in the residuary devise contained in the will.

History. 4843: amend. Acts 1974, ch. 299, § 11.

NOTES TO DECISIONS

1.Contrary Intent of Testator.

Where the testator devises property to his daughter and she predeceases him, the devise will go to the residuary legatees if such was the intent of the testator and, in ascertaining the intent of the testator, the court will look at all provisions of the will. May v. Walter's Ex'rs, 97 S.W. 423, 30 Ky. L. Rptr. 59 (1906) (decision prior to amendment).

Where the testator devised to his daughter for life and then to her children and, if no children, to descend back to his children, and the daughter predeceased the testator without children, the land devised to the daughter passes to the children of the testator under the will and is not intestate property. Golladay v. Thomas, 111 S.W. 721, 33 Ky. L. Rptr. 829 (1908), overruled, Settle v. Vercamp, 485 S.W.2d 251, 1972 Ky. LEXIS 128 ( Ky. 1972 ), overruled in part, Settle v. Vercamp, 485 S.W.2d 251, 1972 Ky. LEXIS 128 ( Ky. 1972 ), overruled on other grounds, Settle v. Vercamp, 485 S.W.2d 251, 1972 Ky. LEXIS 128 (Ky. 1972) (decision prior to amendment).

This statute does not apply once the conclusion is reached that the change made by the codicil in the residuary provisions of the will affected only the disposition of the “clothing, jewelry, etc.,” of the testatrix, the balance of the estate is disposed of by the residuary clause and there is no lapsed devise or devise not capable of taking effect. Ward v. Curry's Ex'r, 297 Ky. 420 , 180 S.W.2d 305, 1944 Ky. LEXIS 748 ( Ky. 1944 ).

Where testator devised life estate in realty to wife with remainder over to three of four sons, and in another clause of will expressed intention that fourth son should get nothing, the share of one of the three sons, who predeceased testator unmarried, was disposed of according to the provisions of KRS 394.410 , and not according to provisions of this section as contended for by fourth son. Horseman v. Horseman, 309 Ky. 289 , 217 S.W.2d 645, 1949 Ky. LEXIS 694 ( Ky. 1949 ) (decision prior to amendment).

2.Lapsed Devise.

Where a devise in the residuary clause fails, the property attempted to be devised passes to the heirs at law of the testator. Stockwell's Adm'r v. Bowman, 67 S.W. 379, 23 Ky. L. Rptr. 2304 , 1902 Ky. App. LEXIS 3 (Ky. Ct. App. 1902) (decision prior to amendment).

Legacy to named person “if living, otherwise void,” did not indicate intent that amount of legacy should go to residuary legatees in case of death of named legatee before testator. Northcutt's Ex'x v. Farmers Nat'l Bank, 292 Ky. 628 , 166 S.W.2d 971, 1942 Ky. LEXIS 110 ( Ky. 1942 ) (decision prior to amendment).

The language “her heirs and assigns forever, in fee simple” in a devise were words of limitation and did not prevent the lapse of the devise upon the devisee’s death without issue prior to the testator’s. Schmidt v. Halpin, 351 S.W.2d 57, 1961 Ky. LEXIS 136 ( Ky. 1961 ) (decision prior to amendment).

3.— Devisee Predeceases Testator.

Where the testator devised all of his property to his wife and she predeceased the testator, the devise lapsed and the testator’s estate passed at his death as if no will had been made. Garrard v. Kendall, 121 S.W. 997 ( Ky. 1909 ) (decision prior to amendment).

Where the will devised a life estate without designating a remainderman and the devisee died before the testator, the property in question passed under the residuary clause, rather than to the heirs at law because the future interest remained outstanding and undisposed of and was therefore a part of the testator’s estate to which the residuary clause was applicable. Settle v. Vercamp, 485 S.W.2d 251, 1972 Ky. LEXIS 128 ( Ky. 1972 ) (decision prior to amendment).

Option to purchase real property given to a named beneficiary under a will who predeceased the testator passed to the surviving optionees under KRS 394.410 , rather than to the estate residue under KRS 394.500 , because the language in the testator’s will was a reasonably clear expression of intent for the option to purchase the testator’s farm to pass to a class of the testator’s relatives. Reynolds v. Reynolds, 434 S.W.3d 510, 2014 Ky. App. LEXIS 85 (Ky. Ct. App. 2014).

4.— Beneficiary and Trustee Predecease Testator.

Where the testatrix devised property to her brother in trust for the use and benefit of her sister for her life and then “to do with as we have privately agreed,” and the sister died leaving no children and the trustee was dead, the trust failed, and the devised estate passed to the heirs at law of the testatrix. Arnold v. Clay, 262 Ky. 336 , 90 S.W.2d 55, 1936 Ky. LEXIS 24 ( Ky. 1936 ) (decision prior to amendment).

5.— Void for Remoteness.

Where an ultimate devise is void for remoteness, the estate will progress under the will up to the point where the rule against perpetuities begins to operate and a fee is created in the person who, under the statute of descent and distribution, or the will of the donor of the power, is authorized to take it. Ligget v. Fidelity & Columbia Trust Co., 274 Ky. 387 , 118 S.W.2d 720, 1938 Ky. LEXIS 271 ( Ky. 1938 ) (decision prior to amendment).

6.— Passes to Devisee of Heir.

Where the testator devised land for life with remainder to his daughter if she survived the life tenant, otherwise to a school which was never organized, and the daughter devised the property to a seminary, but died before the life tenant, the devise failed and the daughter, who was the testator’s only surviving child, took the fee in the land by inheritance, and her devisee was entitled to the land as against the collateral heirs of the original testator. Newton v. Southern Baptist Theological Seminary, 115 Ky. 414 , 74 S.W. 180, 24 Ky. L. Rptr. 2310 , 1903 Ky. LEXIS 115 ( Ky. 1903 ) (decision prior to amendment).

7.— Devisee No Longer Exists.

Where a warning order attorney was unable to serve a church that was a trust remainder beneficiary, there is no reason to believe that the devise to the church was capable of taking effect, since the church apparently no longer existed; because the will establishing the trust provided that the beneficiaries were to take equal shares, the interest of the defunct church was to be equally divided between the remaining beneficiaries under KRS 394.500 . Brown v. Branch Banking & Trust Co. (In re Arc of the Bluegrass Inc.), 2008 Bankr. LEXIS 1650 (Bankr. E.D. Ky. June 4, 2008).

8.Estate to Heirs of Devisee.

Where the testator devised land to his only son and to the son’s descendants at the death of the son, and the son died without children or grandchildren but by will devised the land to his wife, the wife takes the property and it does not descend as intestate property. Gilman v. Stone, 123 Ky. 137 , 94 S.W. 28, 29 Ky. L. Rptr. 591 , 1906 Ky. LEXIS 135 ( Ky. 1906 ) (decision prior to amendment).

Where a husband devises his whole estate absolutely to his wife, and she predeceases him survived by a child who is the stepchild of the testator, the child takes the devise to the exclusion of the father of the testator under KRS 394.400 . Dillender v. Wilson, 228 Ky. 758 , 16 S.W.2d 173, 1929 Ky. LEXIS 657 ( Ky. 1929 ) (decision prior to amendment).

Where the testatrix devised her entire estate to her husband, and he predeceased her survived by children by a former marriage, the entire estate so devised passed to the children of the husband and not as intestate property to the heirs of the testator. Tagnon's Adm'x v. Tagnon, 253 Ky. 374 , 69 S.W.2d 714, 1934 Ky. LEXIS 664 ( Ky. 1934 ) (decision prior to amendment).

9.Residuary Clause.

Where testator, in fourth clause of will, bequeathed $2,000 to his widow for life, with power to dispose of same by will at her death, and in fifth clause of will bequeathed the residue of his property to his widow for life, with specific remainders as to certain sums and a general residuary remainder clause, and the widow died without disposing of the $2,000 by will, the $2,000 passed under the residuary remainder clause and not as intestate property. Sigmon v. Moore's Adm'r, 297 Ky. 525 , 180 S.W.2d 420, 1944 Ky. LEXIS 765 ( Ky. 1944 ) (decision prior to amendment).

District Court’s probate of will was proper where item leaving money to daughter and daughter’s name in the residuary clause were deleted by testator with an intent to revoke all gifts to the daughter; such a revocation had the statutory effect of increasing the residuary amounts to two others taking under the residuary clause. Conley v. Brewer, 666 S.W.2d 751, 1983 Ky. App. LEXIS 404 (Ky. Ct. App. 1983).

Testator who deleted bequest to daughter and deleted daughter’s name from residuary clause validly revoked any devises to the daughter, in accordance with KRS 394.080(4) (now (3)); the revoked devises passed to the residuary clause pursuant to KRS 394.500 and the fact that the residuary amounts were consequently increased had no effect on the validity of the revocation. Conley v. Brewer, 666 S.W.2d 751, 1983 Ky. App. LEXIS 404 (Ky. Ct. App. 1983).

That a lapsed gift is in the residuum itself is of no consequence to the operation of the lapsed statute unless there is only one beneficiary named in the residuum. Belew v. Sharp, 696 S.W.2d 788, 1985 Ky. App. LEXIS 531 (Ky. Ct. App. 1985).

In a case involving the interpretation of a will, summary judgment was properly granted in favor of a sister’s heirs because an alternative contingent remainder vested in the heirs after the sister died; the land did not pass through the residuary clause because the will did not require the sister to outlive a life tenant in order to take a remainder interest in land. Georgetown College v. Alexander, 140 S.W.3d 6, 2003 Ky. App. LEXIS 210 (Ky. Ct. App. 2003).

10.Partial Lapse of Trust Beneficiaries.

Where the testator created a trust, the income from which is to be divided between various charitable organizations and some of the designated organizations cease to exist, there is not a lapse, but the trustee is to continue to carry out the provisions of the trust. Gill's Ex'r v. Woman's Club of Louisville, 205 Ky. 731 , 266 S.W. 378, 1924 Ky. LEXIS 211 ( Ky. 1924 ) (decision prior to amendment).

11.Avoidance of Intestacy.

A will must be so construed as to avoid intestacy unless it clearly appears from the language of the will that the testator intended to die intestate as to part of his estate. Hopson's Trustee v. Hopson, 282 Ky. 181 , 138 S.W.2d 365, 1940 Ky. LEXIS 156 ( Ky. 1940 ) (decision prior to amendment).

Cited:

Faulkner v. Tucker, 83 S.W. 579, 26 Ky. L. Rptr. 1130 (1904); Northcutt’s Ex’x v. Farmers Nat’l Bank, 292 Ky. 628 , 166 S.W.2d 971, 1942 Ky. LEXIS 110 , 144 A.L.R. 472 ( Ky. 1942 ); Chrisman v. Allman, 302 Ky. 144 , 194 S.W.2d 175, 1946 Ky. LEXIS 627 ( Ky. 1946 ); Kurrie v. Kentucky Trust Co., 302 Ky. 592 , 194 S.W.2d 638, 1946 Ky. LEXIS 665 ( Ky. 1946 ); McLeod v. Andrews, 303 Ky. 46 , 196 S.W.2d 473, 1946 Ky. LEXIS 758 (Ky. 1946); Louisville Trust Co. v. Walter, 306 Ky. 756 , 207 S.W.2d 328, 1948 Ky. LEXIS 549 ( Ky. 1948 ); McKinney v. Mt. Sterling Nat’l Bank, 310 Ky. 186 , 220 S.W.2d 379, 1949 Ky. LEXIS 873 ( Ky. 1949 ); Cundiff v. Schmitt, 243 S.W.2d 667, 1951 Ky. LEXIS 1154 ( Ky. 1951 ); Haysley v. Rogers, 255 S.W.2d 649, 1952 Ky. LEXIS 1146 ( Ky. 1952 ); Ellis v. Paxton, 114 F. Supp. 347, 1953 U.S. Dist. LEXIS 3971 (D. Ky. 1953 ); Dils v. Richey, 431 S.W.2d 497, 1968 Ky. LEXIS 366 ( Ky. 1968 ); Murray v. Murray, 564 S.W.2d 5, 1978 Ky. LEXIS 344 ( Ky. 1978 ); Mackey v. Hinson, 2009 Ky. App. LEXIS 243 (Ky. Ct. App. Dec. 4, 2009).

Research References and Practice Aids

Kentucky Law Journal.

Dukeminier, Kentucky Perpetuities Law Restated and Reformed, 49 Ky. L.J. 3 (1960).

Kentucky Law Survey, Bratt, Property, 73 Ky. L.J. 459 (1984-85).

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

394.510. Obligee has lien on devise charged with obligation.

When any property is devised subject to or upon the payment by the devisee to another of a sum of money or his doing some other thing, the latter shall have a lien on the legacy for the sum to be paid, or for the value of the thing to be done.

History. 2066.

NOTES TO DECISIONS

1.Lien.

Where the testator devised his land to his two cousins, providing that if either should die without issue then the share of the deceased cousin should go to the survivor provided the survivor pay to the husband of the deceased cousin the sum of $15,000, upon the death of one of the cousins her share of the land goes to the survivor under the will but charged with a lien in favor of the husband of the deceased cousin in the amount of $15,000. Holt's Ex'r v. Deshon, 126 Ky. 310 , 103 S.W. 281, 31 Ky. L. Rptr. 744 , 1907 Ky. LEXIS 38 ( Ky. 1907 ).

Where will devised undivided half of realty to widow, and directed widow to support and maintain incompetent son, with authority to sell interest if necessary for support of widow and son, and remaining half interest was devised to another son and daughter with provision that they should support incompetent if widow died before incompetent, a charge on all of the realty was created in favor of the incompetent. York v. York, 275 Ky. 573 , 122 S.W.2d 140, 1938 Ky. LEXIS 469 ( Ky. 1938 ).

Where testator stated that he was blocking out a plan to give his heirs what he owed them, left certain real property constituting the bulk of his estate to one son with the provision that he pay certain amounts to each of the testator’s other heirs, and further provided that the share of any heir dying without heirs would pass to the other heirs, the son took the fee title to the realty subject to equitable liens of the other heirs for their shares and none of the interests were defeasible. Howard v. Reynolds, 261 S.W.2d 815, 1953 Ky. LEXIS 1064 ( Ky. 1953 ).

2.— Vesting of Interest.

Where the testator devised land to an afflicted son for life, with the provision that if another son stayed with and took care of the afflicted son the land should go to him upon the death of the afflicted son, the staying with and taking care of the afflicted son is a condition precedent to the vesting of any interest. Loy v. McClister, 141 Ky. 800 , 133 S.W. 950, 1911 Ky. LEXIS 101 ( Ky. 1911 ).

3.“Request.”

A “request” that a devisee in a will permit his sister to live with him is not the imposition of an obligation under this section. Hagan v. Muir, 268 Ky. 636 , 105 S.W.2d 820, 1937 Ky. LEXIS 515 ( Ky. 1937 ).

4.Sale to Bona Fide Purchaser.

Where the testator, after making provision for the sale of certain property to pay his debts, states that his sons shall pay the remainder out of their interests in his estate, no charge is thereby created on the interests of the sons that would prevent them from conveying a clear title to a bona fide purchaser for value. Grotenkemper v. Bryson, 79 Ky. 353 , 2 Ky. L. Rptr. 335 , 1881 Ky. LEXIS 33 (Ky. Ct. App. 1881) (decided under prior law).

Cited:

Thornton v. Black, 295 Ky. 72 , 173 S.W.2d 819, 1943 Ky. LEXIS 198 ( Ky. 1943 ).

394.520. Specific legacy — When payable.

If no time is fixed for the payment of a specific pecuniary legacy, it shall be payable one (1) year after the probate of the will, and carry interest after due.

History. 2065: amend. Acts 1980, ch. 259, § 16, effective July 15, 1980.

NOTES TO DECISIONS

1.Purpose.

The purpose of this section is to protect an executor against the payment of specific pecuniary legacies and interest thereon before the expiration of one year after the testator’s death (now date of probate), and to protect the executor during that period. Grainger's Ex'rs v. Pennebaker, 247 Ky. 324 , 56 S.W.2d 1007, 1932 Ky. LEXIS 873 ( Ky. 1932 ), limited, Whitman v. Lincoln Bank & Trust Co., 340 S.W.2d 608, 1960 Ky. LEXIS 59 ( Ky. 1960 ).

2.Application.

This section is intended to apply only to a personal representative to give him a reasonable time to administer the estate. Breckinridge v. Breckinridge's Ex'rs, 264 Ky. 82 , 94 S.W.2d 283, 1936 Ky. LEXIS 274 ( Ky. 1936 ).

This section embraces and applies to a pecuniary legacy that is specific in amount regardless of the fund out of which it is made payable. Lee v. Gathright's Ex'r, 265 Ky. 148 , 95 S.W.2d 1065, 1936 Ky. LEXIS 420 ( Ky. 1936 ).

3.Specific Pecuniary Legacy.

The term “specific pecuniary legacy” means a definite, named sum of money. Maynard's Adm'r v. Maynard, 285 Ky. 75 , 146 S.W.2d 343, 1940 Ky. LEXIS 597 ( Ky. 1940 ).

4.Interest.

Where the testator directed that the pecuniary legacies be paid as soon as practicable, and the legatees resisted the probation of the will by a protracted litigation, they were not entitled to interest on their legacies from one year after the testator’s death (now date of probate). Commonwealth use of Johnson v. Turley, 67 Ky. 398 , 1868 Ky. LEXIS 145 ( Ky. 1868 ) (decided under prior law).

When no time is fixed for the payment of a legacy, a reasonable time should be fixed and on which it begins to bear interest, and that time is one year. Chambers' Guardian v. Chambers' Ex'rs, 87 Ky. 144 , 7 S.W. 620, 9 Ky. L. Rptr. 981 , 1888 Ky. LEXIS 42 ( Ky. 1888 ) (decided under prior law).

A pecuniary bequest to a legatee to be payable when she arrives at the age of 20 years does not bear interest from the date of the death of the testator (now date of probate) until the legatee arrives at the age indicated. Cline v. Scott's Ex'r, 32 S.W. 215, 17 Ky. L. Rptr. 602 (1895).

Where the testator bequeathed to his great-grandson, $2,000 out of the proceeds of two designated notes, the total of which exceeded that amount, the great-grandson was held to be entitled to interest upon the legacy from the date of the death of the testator (now date of probate). Piper's Ex'r v. Adair, 64 S.W. 645, 23 Ky. L. Rptr. 866 (1901).

The interest on a legacy, after it becomes due, should be calculated as on other debts by applying payments first to the satisfaction of the interest due, when the legacy is paid in instalments. Morton's Ex'r v. Trustees of Church Home for Females & Infirmary for Sick, 70 S.W. 841, 24 Ky. L. Rptr. 1122 (1902).

Where the testator bequeaths a specific sum of money to a legatee, the legacy is due and payable in one year and will bear interest after the expiration of that period and not from the death of the testator (now date of probate), provided that the will does not specify otherwise. Harlan's Trustee v. Harlan, 228 Ky. 73 , 14 S.W.2d 397, 1929 Ky. LEXIS 492 ( Ky. 1929 ).

5.— Will Contest.

Where there is a contest over the probation of the will, the pecuniary legacies cannot be safely paid until that contest is settled, and interest should be computed from the date of the settlement of the contest suit. Trustees of Church Home v. Morris, 99 Ky. 317 , 36 S.W. 2, 18 Ky. L. Rptr. 384 , 1896 Ky. LEXIS 97 ( Ky. 1896 ).

Where a specific sum is bequeathed, and the will is contested and settled more than one year after the death of the testator (now date of probate), the legatee is entitled to interest on the specific sum from the expiration of one year after the death of the testator and not from the time that the suit was settled. Redd's Adm'r v. Redd, 58 S.W. 428, 22 Ky. L. Rptr. 505 , 1900 Ky. LEXIS 302 (Ky. Ct. App. 1900).

6.— Life Estates.

The devisee of a life estate is not entitled to interest on the amount of that life estate for the year following the death of the testatrix (now date of probate). Hood v. Maxwell, 66 S.W. 276, 23 Ky. L. Rptr. 1791 (1902). See Grainger's Ex'rs v. Pennebaker, 247 Ky. 324 , 56 S.W.2d 1007, 1932 Ky. LEXIS 873 ( Ky. 1932 ), limited, Whitman v. Lincoln Bank & Trust Co., 340 S.W.2d 608, 1960 Ky. LEXIS 59 ( Ky. 1960 ).

This section does not deprive the devisee of a life estate of the income from a trust fund during the year after the testator’s death (now date of probate). Grainger's Ex'rs v. Pennebaker, 247 Ky. 324 , 56 S.W.2d 1007, 1932 Ky. LEXIS 873 ( Ky. 1932 ), limited, Whitman v. Lincoln Bank & Trust Co., 340 S.W.2d 608, 1960 Ky. LEXIS 59 ( Ky. 1960 ). See Hood v. Maxwell, 66 S.W. 276, 23 Ky. L. Rptr. 1791 (1902).

7.— Demonstrative Bequests.

Where certain bequests were determined to be demonstrative, they would bear interest as provided under this section. Norton-Children's Hospitals, Inc. v. First Kentucky Trust Co., 557 S.W.2d 895, 1977 Ky. App. LEXIS 842 (Ky. Ct. App. 1977).

Cited:

Lakes v. Lakes’ Ex’rs, 267 Ky. 684 , 103 S.W.2d 86, 1937 Ky. LEXIS 368 ( Ky. 1937 ), overruled in part, Trimble v. Hatcher’s Ex’rs, 295 Ky. 178 , 173 S.W.2d 985, 1943 Ky. LEXIS 204 (1943).

394.530. Purchaser of trust estate — When required to see to application.

Where lands are devised to be sold on special or general trust, or are conveyed or devised to trustees or executors in trust to be sold generally or for any specific purpose, the purchaser shall not be bound to look to the application of the purchase money, unless so expressly required by the conveyance or devise.

History. 4846.

NOTES TO DECISIONS

1.Power of Sale.

Where land is placed in trust for the use and benefit of the children of the testator to be delivered to them when they arrive at age or marry, and the surviving daughter marries, the trust is a “naked” trust and the daughter has the power to convey title to the land, and no duty is imposed on the purchaser to see to the reinvestment. Hughes v. Rhodes, 37 S.W. 489, 18 Ky. L. Rptr. 595 (1896).

Where the trustee is given power to sell land which is the subject matter of the trust and reinvest the proceeds in other land, the purchaser is protected in his purchase of the land and does not have to see to the reinvestment of the purchase price. Owsley v. Eads, 57 S.W. 225, 22 Ky. L. Rptr. 355 , 1900 Ky. LEXIS 620 (Ky. Ct. App. 1900).

Where the testator devises land to his wife, with power to sell the land if she deems it advantageous, but the proceeds to be invested in other real estate, the widow has the power to pass a clear title to the land, and the purchaser does not have to see to the reinvestment. Johnson v. Dumeyer, 66 S.W. 1025, 23 Ky. L. Rptr. 2243 , 1902 Ky. LEXIS 498 (Ky. Ct. App. 1902). See Miller v. Stagner, 76 S.W. 160, 25 Ky. L. Rptr. 650 (1903); Robinson v. Pence, 76 S.W. 368, 25 Ky. L. Rptr. 733 (1903).

The purchaser of land which was deeded to an infant but whose parents had the power of sale is not under any duty with respect to the application of the purchase money. Gullett v. Bailey, 237 Ky. 151 , 35 S.W.2d 17, 1931 Ky. LEXIS 568 ( Ky. 1931 ).

Where trustee had power to sell land, and trust instrument provided that purchaser need not look to a reinvestment of the proceeds, beneficiary had no cause of action against purchaser or other beneficiaries in case land was conveyed to purchaser without consideration, and purchaser then sold land and divided proceeds among other beneficiaries, since only cause of action would be against trustee. McCampbell v. McCampbell, 276 Ky. 567 , 124 S.W.2d 794, 1939 Ky. LEXIS 557 ( Ky. 1939 ).

Where deed from life tenants, who had power of sale for reinvestment, was regular on its face, subsequent mortgagee was not required to make any investigation to determine whether there was a reinvestment of the proceeds of the sale. Metropolitan Life Ins. Co. v. Chenault, 282 Ky. 252 , 138 S.W.2d 319, 1939 Ky. LEXIS 45 ( Ky. 1939 ).

Where the deed to an inter vivos trustee vested him with the power to sell the property on any terms he saw fit and specifically exempted any purchaser from being required to look to the application of the proceeds, this exemption would have rendered any purchaser from the trustee immune from liability to any unidentified trust beneficiaries. Rohleder v. French, 675 S.W.2d 8, 1984 Ky. App. LEXIS 483 (Ky. Ct. App. 1984).

2.— Purchaser’s Refusal of Deed.

Where successor trustee had right to sell or convey realty for purpose of reinvestment in property of like kind and character, purchaser could not refuse to accept a deed where only ground for refusal was he would be liable for any misapplication of purchase money by trustee. Robbins v. State Bank & Trust Co., 314 Ky. 401 , 235 S.W.2d 1019, 1951 Ky. LEXIS 672 ( Ky. 1951 ).

3.Land Subject to Lien.

Where the testator devised certain land to his son, “requiring” the son to pay to the testator’s niece $500, a lien against the land was thereby created, and a purchaser from the son takes the land subject to a lien in favor of the niece in the amount of $500. Curd v. Field, 103 Ky. 293 , 45 S.W. 92, 19 Ky. L. Rptr. 2016 , 1898 Ky. LEXIS 68 ( Ky. 1898 ).

4.Power to Mortgage.

Where the trustee is given the power to mortgage the trust property, and he is charged with the duty of paying certain debts and keeping the property in repair, the trustee may mortgage the property and the mortgagee does not have to see to the reinvestment or disposition of the funds paid to the trustee. Walter v. Brugger, 78 S.W. 419, 25 Ky. L. Rptr. 1597 (1904).

5.Trustee’s Failure to Reinvest.

Where the obligation of the purchaser to see to the application of the purchase money is not clearly indicated by the deed, his title is not affected by the failure of the trustee to make the reinvestment. Louisville & A. R. Co. v. Horn, 82 S.W. 567, 26 Ky. L. Rptr. 829 , 1904 Ky. LEXIS 341 (Ky. Ct. App. 1904).

6.Imposition of Duty on Purchaser.

Where the testator gave a life estate in certain land to his son with power of sale, and the will provided “and the purchaser must see to the investment of the purchase money, or the lands here given my said son by me must be held responsible,” the purchaser must see to the reinvestment as directed in the will of the testator. Magowan v. McCormick, 10 S.W. 632, 10 Ky. L. Rptr. 753 (1889).

In order to charge the purchaser with the application of the purchase money it must be expressly provided in the deed or the devise that he is to see to the investment of the purchase money, or there must be other language therein expressly imposing this duty upon him. Gullett v. Bailey, 237 Ky. 151 , 35 S.W.2d 17, 1931 Ky. LEXIS 568 ( Ky. 1931 ).

Cited:

Hays v. Applegate, 101 Ky. 22 , 19 Ky. L. Rptr. 183 , 39 S.W. 436, 1897 Ky. LEXIS 145 ( Ky. 1897 ); Stevens v. Smith, 124 Ky. 780 , 30 Ky. L. Rptr. 995 , 99 S.W. 1160, 1907 Ky. LEXIS 239 ( Ky. 1907 ); Henriott v. Cood, 153 Ky. 418 , 155 S.W. 761, 1913 Ky. LEXIS 847 ( Ky. 1913 ); Tarpy v. Lexington & E. R. Co., 154 Ky. 345 , 157 S.W. 726, 1913 Ky. LEXIS 90 ( Ky. 1913 ).

394.540. Contract to make a will, not to revoke a will or to die intestate.

  1. A contract to make a will or devise, or not to revoke a will or devise or to die intestate, if executed after June 16, 1972, can be established only by:
    1. Provisions of a will stating material provisions of the contract;
    2. An express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or
    3. A writing signed by the decedent evidencing the contract.
  2. The execution of a joint will or mutual wills gives rise to no presumption of a contract not to revoke the will or wills.

History. Enact. Acts 1972, ch. 168, § 3.

NOTES TO DECISIONS

1.Irrevocable Contract.

Under this section mutual or joint wills shall no longer be considered to constitute an irrevocable contract unless the will by its terms states plainly that its provisions are to be considered as a contract, or unless the conditions of subsections (1)(b) and (c) of this section are met; subsection (2) of this section which provides that the execution of a joint or mutual will does not give rise to a presumption of a contract not to revoke is not susceptible of any other interpretation. Martin v. Cassady, 628 S.W.2d 888, 1982 Ky. App. LEXIS 202 (Ky. Ct. App. 1982).

Where party contesting a will failed to establish that there was a contractual binding that a prior mutual will would not be revoked, the contested will was probated. Duncan v. Wold, 846 S.W.2d 720, 1992 Ky. App. LEXIS 211 (Ky. Ct. App. 1992).

2.Survivorship Deed.

In a case decided under law obtaining prior to the effective date of this section, a joint will was held to prevail over a survivorship deed. Munday v. Munday, 687 S.W.2d 143, 1985 Ky. LEXIS 212 ( Ky. 1985 ).

3.Mutual will.

Sufficient evidence under any one of the subsections of this section is sufficient to establish a mutual will and it is not necessary to adduce proof under all three. Duncan v. Wold, 846 S.W.2d 720, 1992 Ky. App. LEXIS 211 (Ky. Ct. App. 1992).

4.No Retroactive Application.

This section would not be applied retroactively to invalidate a joint will which was executed in 1951. Fryxell v. Clark, 856 S.W.2d 892, 1993 Ky. App. LEXIS 85 (Ky. Ct. App. 1993).

5.Writing Requirement.

Where appellant beneficiary maintained that appellees, his brother, an attorney, and the law firm that revised his father’s will, intentionally interfered with his contract with his father wherein he orally agreed that appellant would receive one-half of his estate upon his death, the oral agreement did not conform to the requirements of KRS 394.540(1). Summary judgment was proper, as there was no contract as a matter of law. Goodman v. Goldberg & Simpson, P.S.C., 323 S.W.3d 740, 2009 Ky. App. LEXIS 197 (Ky. Ct. App. 2009).

Research References and Practice Aids

Kentucky Bench & Bar.

Fust, Common Challenges of the (Not So) Uncommon Estate Planning Client, Vol. 70, No. 1, January 2006, Ky. Bench & Bar 11.

Kentucky Law Journal.

Kentucky Law Survey, Catron, Wills, Probate and Real Property Law, 71 Ky. L.J. 333 (1982-83).

Northern Kentucky Law Review.

Muehlenkamp, Kentucky Estate Planning and Administration Update, 22 N. Ky. L. Rev. 489 (1995).

394.550. Stock legacy to include split shares, dividends, and shares issued in merger and exchange.

A legacy of stock, regardless of whether it is construed to be general or specific, shall include:

  1. All stock split shares attributable to the devised shares;
  2. All stock dividends attributable to the devised shares;
  3. All shares of stock issued as a result of merger, consolidation, reorganization or other similar action, and attributable to the devised shares; and
  4. All shares of stock issued in exchange for and attributable to the devised shares, received by the testator after execution of the will or by his estate after his death, unless there is in the will or a codicil thereto a manifest intention to the contrary.

History. Enact. Acts 1972, ch. 168, § 4.

NOTES TO DECISIONS

1.Shares Added By Stock Dividend.

Where will provided for a trust fund consisting of various enumerated assets, the income to be distributed among several named charities, except as otherwise designated, and among the otherwise designated items was 700 shares of common capital stock of a certain bank, the income of which was to be paid to a named seminary, all the shares added by stock dividend derived from the original 700 such shares were to be held as corpus for the benefit of the seminary. Hatcher v. Southern Baptist Theological Seminary, 632 S.W.2d 251, 1982 Ky. LEXIS 243 ( Ky. 1982 ).

2.Stock Split.

Multiplying shares was proper, even though the stock split occurred before the will was executed, because this section does not include a timing element. Moreover, no ademption occurred because a reference to stock that had been converted into shares of a different corporation clearly was an attempt to devise the stock. Strunk v. Lawson, 447 S.W.3d 641, 2013 Ky. App. LEXIS 111 (Ky. Ct. App. 2013).

394.610. Right to disclaim succession.

  1. As used in this section, the “legal representative of a living person” includes the person’s conservator, limited conservator, guardian, limited guardian, and attorney-in-fact.
  2. A living person, or the legal representative of a living person, who is an heir, next of kin, devisee, legatee, joint tenant, person succeeding to a disclaimed interest, beneficiary under a testamentary instrument, or appointee under a power of appointment exercised by a testamentary instrument, may disclaim in whole or in part the right of succession to any property or interest therein, including a future interest, by filing a written disclaimer under KRS 394.610 to 394.670 . The right to disclaim shall survive the death of the person having it and may be exercised by the personal representative of such person’s estate without authorization of the court having jurisdiction over the estate of the person. The instrument shall:
    1. Describe the property or interest disclaimed;
    2. Declare the disclaimer and extent thereof; and
    3. Be signed by the disclaimant.
  3. No disclaimer by a living person’s legal representative, except for the person’s attorney-in-fact, shall be made unless the court having jurisdiction of the estate of the disabled, incapacitated, or protected person has authorized the disclaimer. No disclaimer by the person’s attorney-in-fact shall be made unless the instrument governing the attorney-in-fact’s authority expressly authorizes a disclaimer.

History. Enact. Acts 1974, ch. 329, § 1; 1980, ch. 259, § 17, effective July 15, 1980; 1998, ch. 267, § 3, effective July 15, 1998.

NOTES TO DECISIONS

Cited:

Ernst v. Shaw, 783 S.W.2d 400, 1990 Ky. App. LEXIS 6 (Ky. Ct. App. 1990).

Research References and Practice Aids

Kentucky Bench & Bar.

Bozell, Disclaimer Trusts: A Flexible Choice for Many Couples in the Face of an Uncertain Future for the Estate Tax, Vol. 70, No. 1, January 2006, Ky. Bench & Bar 7.

Kentucky Law Journal.

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Disclaimer of Transfer at Death, Form 230.17.

394.620. Time and place of filing disclaimer.

  1. An instrument disclaiming a present interest shall be filed not later than nine (9) months after the death of the decedent or the donee of the power.
  2. An instrument disclaiming a future interest shall be filed not later than nine (9) months after the event that determines that the taker of the property or interest is finally ascertained and his interest indefeasibly vested.
  3. The disclaimer shall be filed in the District Court of the county in which proceedings have been commenced for the administration of the estate of the deceased owner or deceased donee of the power or, if they have not been commenced, in which they could be commenced. A copy of the disclaimer shall be delivered in person or mailed by registered or certified mail to any personal representative, or other fiduciary of the decedent or donee of the power. If real property or an interest therein is disclaimed, a copy of the disclaimer may be recorded in the office of the county clerk of the county in which the real estate is situated.

History. Enact. Acts 1974, ch. 329, § 2; 1976 (Ex. Sess.), ch. 14, § 367, effective January 2, 1978; 1980, ch. 259, § 18, effective July 15, 1980.

Research References and Practice Aids

Kentucky Bench & Bar.

Bozell, Disclaimer Trusts: A Flexible Choice for Many Couples in the Face of an Uncertain Future for the Estate Tax, Vol. 70, No. 1, January 2006, Ky. Bench & Bar 7.

Kentucky Law Journal.

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Disclaimer of Transfer at Death, Form 230.17.

394.630. Effect of disclaimer.

Unless the decedent or donee of the power has otherwise provided, the property or interest disclaimed devolves as if the disclaimant had predeceased the decedent or, if the disclaimant is designated to take under a power of appointment exercised by a testamentary instrument, as if the disclaimant had predeceased the donee of the power. A future interest that takes effect in possession or enjoyment after the termination of the estate or interest disclaimed takes effect as if the disclaimant had predeceased the decedent or the donee of the power. A disclaimer relates back for all purposes to the date of the death of the decedent or the donee of the power.

History. Enact. Acts 1974, ch. 329, § 3.

NOTES TO DECISIONS

1.Effect of Deed of Disclaimer.

Individual’s disclaimer of his interest in his father’s estate did not serve to deprive that individual’s three children of their interest in their grandfather’s estate; their claim was under the will of their grandfather, having statutorily come into being by virtue of the Deed of Disclaimer executed by their father. Ernst v. Shaw, 783 S.W.2d 400, 1990 Ky. App. LEXIS 6 (Ky. Ct. App. 1990).

Research References and Practice Aids

Kentucky Bench & Bar.

Bozell, Disclaimer Trusts: A Flexible Choice for Many Couples in the Face of an Uncertain Future for the Estate Tax, Vol. 70, No. 1, January 2006, Ky. Bench & Bar 7.

Kentucky Law Journal.

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Disclaimer of Transfer at Death, Form 230.17.

394.640. Waiver and bar.

  1. The right to disclaim property or an interest therein is barred by (a) an assignment, conveyance, encumbrance, pledge, or transfer of the property or interest, or a contract therefor, (b) a written waiver of the right to disclaim, (c) an acceptance of the property or interest or benefit thereunder, or (d) a sale of the property or interest under judicial sale made before the disclaimer is effected.
  2. The right to disclaim exists notwithstanding any limitation on the interest of the disclaimant in the nature of a spendthrift provision or similar restriction.
  3. The disclaimer or the written waiver of the right to disclaim is binding upon the disclaimant or person waiving and all persons claiming through or under him.

History. Enact. Acts 1974, ch. 329, § 4.

NOTES TO DECISIONS

1.Effect of Deed of Disclaimer.

Individual’s disclaimer of his interest in his father’s estate did not serve to deprive that individual’s three children of their interest in their grandfather’s estate; their claim was under the will of their grandfather, having statutorily come into being by virtue of the Deed of Disclaimer executed by their father. Ernst v. Shaw, 783 S.W.2d 400, 1990 Ky. App. LEXIS 6 (Ky. Ct. App. 1990).

Research References and Practice Aids

Kentucky Law Journal.

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

394.650. Exclusiveness of remedy.

KRS 394.610 to 394.670 does not abridge the right of a person to waive, release, disclaim, or renounce property or an interest therein under any other statute.

History. Enact. Acts 1974, ch. 329, § 5.

Research References and Practice Aids

Kentucky Law Journal.

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

394.660. Application. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 329, § 6) was repealed by Acts 1982, ch. 277, § 21, effective July 15, 1982.

394.670. Uniformity of application and construction.

KRS 394.610 to 394.670 shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of KRS 394.610 to 394.670 among states enacting it.

History. Enact. Acts 1974, ch. 329, § 7.

NOTES TO DECISIONS

Cited:

Ernst v. Shaw, 783 S.W.2d 400, 1990 Ky. App. LEXIS 6 (Ky. Ct. App. 1990).

394.680. Short title.

KRS 394.610 to 394.670 may be cited as the Uniform Disclaimer of Transfers by Will, Intestacy, or Appointment Act.

History. Enact. Acts 1974, ch. 329, § 8.

CHAPTER 395 Personal Representatives

395.001. Definition of “fiduciary.”

The term “fiduciary” as used in this chapter:

  1. Means any person, association, or corporation meeting the requirements of KRS 395.005 (other than assignee or trustee for an insolvent debtor or a guardian under the Uniform Veterans’ Guardianship Act) appointed by, or under the control of, or accountable to, the District Court, including executors, administrators, administrators with the will annexed, curators, guardians and conservators; and
  2. Does not include testamentary trustees.

History. Enact. Acts 1942, ch. 167, § 1; 1944, ch. 115, § 4; 1972, ch. 203, § 53; 1976 (Ex. Sess.), ch. 14, § 381, effective January 2, 1978; 1982, ch. 141, § 105, effective July 1, 1982; 1982, ch. 277, § 8, effective July 15, 1982; 2014, ch. 25, § 111, effective July 15, 2014.

Compiler’s Notes.

Section 56 of Acts 1972, ch. 203, provided: “Nothing in this act shall be construed to effect any substantive change in the statute law of Kentucky and if any substantive change appears to be effected it shall be disregarded and the law as it existed prior to the effective date of this act shall be given full force and effect.”

NOTES TO DECISIONS

1.Application.

The provisions of KRS Chapter 395 relating to successor trustees did not apply to an inter vivos trustee because it governs only testamentary trustees. Rohleder v. French, 675 S.W.2d 8, 1984 Ky. App. LEXIS 483 (Ky. Ct. App. 1984).

2.Jurisdiction.

The principles regarding jurisdiction in a probate proceeding under KRS Ch. 394 apply equally to an application for letters of administration. Schmitt v. Kentucky Trust Co., 429 S.W.2d 839, 1968 Ky. LEXIS 756 ( Ky. 1968 ).

3.Executors.

The executrix represents the testatrix and to a very great extent, the heirs, legatees or distributees, for whose benefit probate proceedings are had. Lucas v. Mannering, 745 S.W.2d 654, 1987 Ky. App. LEXIS 614 (Ky. Ct. App. 1987).

An executrix is a trustee, and funds of the estate in her hands are trust funds. Lucas v. Mannering, 745 S.W.2d 654, 1987 Ky. App. LEXIS 614 (Ky. Ct. App. 1987).

The provision in the will giving the executrix the continuing, absolute, discretionary power to deal with any property, real or personal, held in the estate, including the right to sell and convey any of the assets of the estate, did not vest her with the unqualified authority to sell the residual real estate. Lucas v. Mannering, 745 S.W.2d 654, 1987 Ky. App. LEXIS 614 (Ky. Ct. App. 1987).

Cited:

Maynard v. Chrisman, 301 Ky. 631 , 192 S.W.2d 818, 1946 Ky. LEXIS 540 ( Ky. 1946 ); Riedinger v. Murphy, 337 S.W.2d 22, 1960 Ky. LEXIS 356 ( Ky. 1960 ); Whelan v. Payne, 343 S.W.2d 383, 1960 Ky. LEXIS 108 ( Ky. 1960 ); Gregory v. Lewisport, 369 S.W.2d 133, 1963 Ky. LEXIS 70 ( Ky. 1963 ).

Opinions of Attorney General.

A corporate foreign fiduciary may not act as an executor or administrator of an estate in Kentucky or hold any of the other fiduciary positions, listed in KRS 395.005 , by appointment of a Kentucky court or resident with the exception of the situation provided for by KRS 386.170 . OAG 62-1141 .

Where a corporate foreign fiduciary acts in a fiduciary capacity other than those listed in this section, the residential limitations of KRS 395.005 would not be applicable. OAG 62-1141 .

A nonresident who satisfies the requirements of KRS 395.005 as amended may be appointed as a testamentary trustee, subject to the parenthetical exceptions listed in this section. OAG 70-546 .

The annual settlement required by KRS 25.175 (repealed) applies generally to all “fiduciaries” which would include testamentary trustees and other trustees appointed by or accountable to the District Court. OAG 76-502 .

A District Court may appoint any person, association, or corporation, including a charitable corporation, as a “fiduciary” as defined in this section, in order to be the trustee of a testamentary charitable trust, since limiting the appointment of a fiduciary to those entities specifically enumerated in KRS 395.005 would eliminate charitable corporations from such appointment, even though corporations of any sort are included in the “fiduciary” definition of KRS 395.005 which would produce an absurd result; moreover, this interpretation is necessary because this section and KRS 395.005 are in pari materia, deal with the same subject matter and should be read together. OAG 81-171 .

Research References and Practice Aids

Cross-References.

Action to distribute or partition estate, venue, KRS 452.420 .

Action to settle estate, venue, KRS 452.420 .

Creditors of estate, proof of claims of before commissioner, KRS 395.520 to 395.535 .

Department of revenue, personal representative to file inventory of personal estate with, KRS 132.510 .

Descent and distribution, KRS Ch. 391.

Estates of intestates without heirs, personal representative to settle accounts of within year after qualification, KRS 393.030 .

Fee-bill, personal representative of deceased officer may fill out, KRS 64.420 .

First-class city, fiduciary controlling property in, to pay taxes before paying rents to beneficiaries of, KRS 91.440 .

First-class city tax bills assessed against executor or administrator to be charged against whole succession of trust estates, KRS 91.440 .

General Assembly not to pass special acts affecting estates of decedents, Const., § 59, Sixth.

Income tax of estate, personal representative liable for, KRS 141.030 .

Income tax return, personal representative to make for estate, KRS 141.190 .

Inheritance tax, executor or administrator to pay before he delivers property or legacy, KRS 140.220 .

Inheritance tax, liability of executor or administrator for, KRS 140.190 .

Limitation period for actions other than for land, rights of personal representative when decedent dies during, KRS 413.180 .

Notary public, personal representative of to deposit book of with county clerk, KRS 423.050 .

Personal representative to report abandoned property to department of revenue, KRS 393.110 .

Persons dealing with fiduciary, liability of for breach of fiduciary obligation, KRS 386.100 to 386.150 .

Real property subject to inheritance tax, duty of personal representative to report, KRS 140.180 .

Revivor by personal representative, what actions subject to, KRS 411.140 .

Revivor of action against personal representative, time for, KRS 413.180 .

Wills, KRS Ch. 394.

Written obligation to deceased person, personal representative to proceed on, KRS 371.060 .

Wrongful death, personal representative may maintain action for, Const., § 241; KRS 411.130 .

Kentucky Law Journal.

Roberts, Personal Liability an Executor May Incur in Settling Estates in Kentucky, 46 Ky. L.J. 543 (1958).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Executors and Administrators, § 234.00.

Petrilli, Kentucky Family Law, Antenuptial Agreements, § 13.12.

395.005. Who may be appointed as fiduciary.

The following persons may be appointed as fiduciary:

  1. Any resident of the state of Kentucky, over eighteen (18) years of age, except as set out in KRS 395.080 , and any national bank located in Kentucky having fiduciary powers and any state bank or trust company incorporated under the laws of the state of Kentucky and authorized by law to act as fiduciary;
  2. To the extent permitted pursuant to KRS 286.3-146 and 286.3-920 (6), any bank or trust company organized under the laws of a state other than Kentucky; and
  3. Any nonresident of legal age who is as to the decedent, ward, or incompetent, related by consanguinity, marriage, adoption or the spouse of such person so related.

History. Enact. Acts 1942, ch. 167, § 2; 1968, ch. 100, § 10; 1970, ch. 29, § 1; 1980, ch. 259, § 19, effective July 15, 1980; 2011, ch. 67, § 1, effective June 8, 2011.

NOTES TO DECISIONS

Cited:

Gregory v. Lewisport, 369 S.W.2d 133, 1963 Ky. LEXIS 70 ( Ky. 1963 ).

Opinions of Attorney General.

A corporate foreign fiduciary may not act as an executor or administrator of an estate in Kentucky or hold any of the other fiduciary positions, listed in this section, by appointment of a Kentucky court or resident with the exception of the situation provided for by KRS 386.170 . OAG 62-1141 .

A nonresident who satisfies the requirements of this section as amended may be appointed as a testamentary trustee, subject to the parenthetical exceptions listed in KRS 395.001 . OAG 70-546 .

The best notice available should be used due to the fact that the personal representative will be deprived of a fee upon removal and if he fails to respond to the court’s order to make an accounting he will be subjected to the penalty provided in KRS 395.990 . OAG 73-393 .

This section as changed in 1970 modifies KRS 395.160 and nonresidence is no longer ground for removal when the personal representative is related to the decedent in one of the ways set forth in this section. OAG 73-393 .

In the absence of any requirement of citizenship, alienage alone would not prevent a permanent resident of Kentucky from legally acting as a fiduciary if the person involved satisfies the other requirements set forth in this section. OAG 77-256 .

A District Court may appoint any person, association, or corporation, including a charitable corporation, as a “fiduciary” as defined in KRS 395.001 , in order to be the trustee of a testamentary charitable trust, since limiting the appointment of a fiduciary to those entities specifically enumerated in this section would eliminate charitable corporations from such appointment, even though corporations of any sort are included in the “fiduciary” definition of this section, which would produce an absurd result; moreover, this interpretation is necessary because KRS 395.001 and this section are in pari materia, deal with the same subject matter and should be read together. OAG 81-171 .

Research References and Practice Aids

Cross-References.

Fiduciary bank or trust company not to make investments in own stock, KRS 386.025 .

Guardian or committee for five wards may not be guardian or committee for beneficiary of veterans administration, KRS 388.220 .

Kentucky Law Journal.

Lively, Statutory Priority in Right to Administer Estates, 42 Ky. L.J. 657 (1954).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Probate Procedures Testate and Intestate, § 233.00.

Caldwell’s Kentucky Form Book, 5th Ed., Verified Motion and Order to Nominate Successor Testamentary Trustee, Form 230.08.

Petrilli, Kentucky Family Law, Status of Wife, § 11.2.

395.010. Administration must be within ten years after death.

Original administration shall not be granted after the expiration of ten (10) years from the death of the testator or intestate and if made after that time, it shall be void.

History. 3895: amend. Acts 1980, ch. 259, § 20, effective July 15, 1980.

Opinions of Attorney General.

The provision of this section requiring a physical disclosure of security or securities shown in the account refers to all fiduciaries as specifically defined by this section except corporate fiduciaries under supervision of state or federal banking authorities. OAG 78-298 .

Research References and Practice Aids

Cross-References.

District Court, probate jurisdiction, KRS 24A.120 .

Kentucky Bench & Bar.

Ratliff, Kentucky Probate — A Simple Overview, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 16.

395.012. Right to file demand for notice of action regarding estate.

  1. Any person having a financial or property interest in a decedent’s estate may file a demand for notice with the court at any time after the death of the decedent, stating the name of the decedent, the nature of the demandant’s interest in the estate, and his address or that of his attorney.
  2. If a personal representative has been appointed at the time of filing of the demand, the court shall advise the demandant of the appointment and transmit a copy of each order entered, regarding the estate to the demandant.
  3. After the filing of a demand, no order or filing to which the demand relates shall be entered until the person seeking such order certifies as provided in the Rules of Civil Procedure that the demandant or his attorney has been given written notice. The requirement for notice arising from a demand under this provision may be waived in writing by the demandant and in any event shall cease upon the termination of his interest in the estate.

History. Enact. Acts 1976, ch. 218, § 19.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Demand for Notice of Orders and Filings, Forms 230.06, 233.12.

395.015. Applications for appointment of personal representative.

  1. Before being appointed as executor, administrator, curator, or administrator with the will annexed, every person shall make and file in duplicate a written application under oath, which must state the names of the deceased’s surviving spouse and all of his heirs-at-law or such as are known, their post office address if known, the date of death and also a statement in general terms as to what the estate consists of and the probable value of the personal and real estate and also a statement of any indebtedness owing by the applicant to the deceased. The foregoing requirement in respect to names and addresses of heirs-at-law may be omitted when the application is being made by the executor named in the will unless requested by the court. The application of a nonresident shall include the designation of a resident of the county where administration is pending as his agent for the service of process in any action against him as personal representative or personally, provided that such personal action must have accrued in the administration of the estate. A duplicate copy of said application shall be mailed by the clerk to the secretary of revenue of the State of Kentucky.
  2. In the case of intestacy, or where an administrator with will annexed or de bonis non is to be appointed, if there be no surviving spouse, or if such spouse waives the right of appointment or is not qualified to act and does not nominate a suitable administrator and there is more than one (1) resident heir-at-law entitled to appointment, the court shall thereupon set a time for hearing such application. Notice of said hearing shall be given to the surviving spouse and all known heirs of the deceased residing in the state, or elsewhere, in the manner provided in KRS 395.016 .

History. Enact. Acts 1942, ch. 167, § 5; 1968, ch. 200, § 7; 1970, ch. 29, § 2; 1972, ch. 168, § 15; 1974, ch. 299, § 13; 1976 (Ex. Sess.), ch. 14, § 382, effective January 2, 1978.

NOTES TO DECISIONS

1.Construction.

This section requires the appointing court to disregard and set aside a prior irregular appointment of administrator upon timely application by a suitable person who does comply with the provision of the statute. Wall v. Bingham, 296 Ky. 13 , 175 S.W.2d 1010, 1943 Ky. LEXIS 759 ( Ky. 1943 ).

2.Application for Appointment.

Failure to state certain facts in the application for appointment which this section requires may justify the refusal of the court to appoint the applicant. Mullins v. Mullins, 307 Ky. 748 , 212 S.W.2d 272, 1948 Ky. LEXIS 819 ( Ky. 1948 ).

3.— Verification.

Where parties filed their verified application for appointment as administrators, they were appointed administrators, on appeal a will was ordered probated and their appointment was set aside, they filed an unverified application for appointment as administrators with the will annexed, and they were so appointed, the appointment is not invalid because the application was not verified, since the same information was before the court on the prior verified application for appointment as administrators. Cosby v. Hays, 257 S.W.2d 575, 1953 Ky. LEXIS 788 ( Ky. 1953 ).

4.Nomination by Surviving Spouse.

The person nominated by the surviving spouse can be appointed in preference to a kinsman without notice and a hearing. Treas v. Treas, 240 S.W.2d 593, 1951 Ky. LEXIS 984 ( Ky. 1951 ).

The preference given the surviving husband or wife under KRS 395.040 includes the right of the survivor to nominate a suitable administrator under the provisions of subsection (2) of this section. Treas v. Treas, 240 S.W.2d 593, 1951 Ky. LEXIS 984 ( Ky. 1951 ).

5.Letters of Administration.

Where letters of administration are in force, a second grant of letters of administration is void. Lawrence v. Marks, 355 S.W.2d 162, 1961 Ky. LEXIS 17 ( Ky. 1961 ).

Cited:

Modern Bakery, Inc. v. Brashear, 405 S.W.2d 742, 1966 Ky. LEXIS 269 ( Ky. 1966 ); Schmitt v. Kentucky Trust Co., 429 S.W.2d 839, 1968 Ky. LEXIS 756 ( Ky. 1968 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Ratliff, Kentucky Probate — A Simple Overview, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 16.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Affidavit of Mailing Notice, Form 233.09.

Caldwell’s Kentucky Form Book, 5th Ed., Appointment of Agent for Service of Process, Forms 233.05, 234.05.

Caldwell’s Kentucky Form Book, 5th Ed., Designation by Surviving Spouse of Another to Serve as Administrator, Form 235.02.

Caldwell’s Kentucky Form Book, 5th Ed., Notice to Surviving Spouse and Heirs, Form 230.03.

Caldwell’s Kentucky Form Book, 5th Ed., Notice to Surviving Spouse and Heirs (Intestate), Form 230.08.

Caldwell’s Kentucky Form Book, 5th Ed., Notice to Surviving Spouse and Heirs (Testate), Form 233.07.

395.016. Notice of hearing of application.

When notice of hearing of an application for the appointment of an administrator, administrator with will annexed or guardian is required, it shall be given by mailing written notice of the time, place and purpose of such hearing at least five (5) days before said hearing. Proof of such notice shall be by certified mail, return receipt requested or by applicant’s affidavit that the same was mailed to each of the parties entitled thereto in a sealed envelope, postage prepaid, and the date when posted, which proof shall be filed at the time of hearing. If all parties entitled to notice are under no disability and waive notice in writing, the court may hear such application as if notice had been given. A minor over fourteen (14) years of age may waive notice if present in person at the time of hearing of application for appointment of his guardian; provided, however in any estate where the gross amount involved is less than five thousand dollars ($5,000) the court in its discretion may dispense with the requirements of this section relating to notice.

History. Enact. Acts 1942, ch. 167, § 7; 1974, ch. 315, § 84; 1982, ch. 141, § 106, effective July 1, 1982; 1982, ch. 277, § 9, effective July 15, 1982.

Compiler’s Notes.

Section 10 of Acts 1982, ch. 277 purported to amend this section as amended by § 119 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396, and therefore, the amendment by § 10 of Acts 1982, ch. 277 has not been made.

Legislative Research Commission Note.

This section was amended by two 1982 Acts which do not appear to be in conflict and have been compiled together.

(1988). A technical correction has been made in this section by the Reviser of Statutes pursuant to KRS 7.136 .

NOTES TO DECISIONS

1.Exceptions.

The exception to notice provided in this section for estates of less than $1,000 (now $5,000) was not applicable where the record showed $999 worth of personalty and an inchoate claim for damages to decedent’s estate because of actionable negligence producing his death, a right of action for wrongful death being an asset justifying the appointment of an administrator. Wall v. Bingham, 296 Ky. 13 , 175 S.W.2d 1010, 1943 Ky. LEXIS 759 ( Ky. 1943 ).

Cited:

Treas v. Treas, 240 S.W.2d 593, 1951 Ky. LEXIS 984 ( Ky. 1951 ); New Farmers Nat’l Bank v. Thomas, 411 S.W.2d 672, 1967 Ky. LEXIS 480 ( Ky. 1967 ); Schmitt v. Kentucky Trust Co., 429 S.W.2d 839, 1968 Ky. LEXIS 756 ( Ky. 1968 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Ratliff, Kentucky Probate — A Simple Overview, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 16.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Affidavit of Mailing Notice, Form 233.09.

Caldwell’s Kentucky Form Book, 5th Ed., Notice of Hearing, Form 261.01.

Caldwell’s Kentucky Form Book, 5th Ed., Notice to Surviving Spouse and Heirs (Intestate), Form 230.08.

Caldwell’s Kentucky Form Book, 5th Ed., Notice to Surviving Spouse and Heirs (Testate), Form 233.07.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Guardian and Ward of Minors, § 261.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Probate Procedures Testate and Intestate, § 233.00.

Caldwell’s Kentucky Form Book, 5th Ed., Waiver of Right to Administration, § 234.04.

395.020. Executor not to act until will probated — Exception.

The person named in a will as executor shall not act as executor to any extent until the will or an authenticated copy of the will is admitted to record, and he has executed bond and taken oath in the court in which the record is made. He may, however, provide for the burial of the testator, pay the reasonable funeral expenses, and take care of and preserve the estate.

History. 3886.

NOTES TO DECISIONS

1.Application.

This section is applicable only to personal representatives, and not to trustees. Saffold v. Stevens, 227 Ky. 364 , 13 S.W.2d 268, 1929 Ky. LEXIS 885 ( Ky. 1929 ).

2.Powers After Qualifying in Another State.

Where the will gives the executors power to sell the land and the will is duly probated in another state, and the executors qualify there and then enter into a contract to sell the land located in Kentucky before the will is probated in that state, such a contract is not void but may become binding by probating the will in Kentucky and qualifying as executors and tendering a deed to the land. Allison v. Cocke's Ex'rs, 106 Ky. 763 , 51 S.W. 593, 21 Ky. L. Rptr. 434 , 1899 Ky. LEXIS 105 ( Ky. 1899 ).

3.Powers Before Qualifying.

An executor named in a will, and charged only with executorial duties, has no authority to bind the estate in any way except to provide for funeral and burial expenses and preserve the estate. Andrews v. Minor, 58 S.W. 443, 22 Ky. L. Rptr. 561 , 1900 Ky. LEXIS 689 ( Ky. 1900 ).

4.Will Contests.

Where the will has been probated and the executor proceeds to pay the legacies, and later the will is contested, the acts done by the executor before the contest are valid. Jones v. Jones, 53 Ky. 373 (1854) (decided under prior law).

Where an administrator with the will annexed is appointed and the probate of the will is immediately contested and notice of such a contest is served upon him, the administrator is under a duty to hold the property of the estate until the contest is settled, and he and his sureties are liable if he carries out any distribution of the property under the will. CROW'S ADM'R v. CROW., 53 Ky. 383 , 1854 Ky. LEXIS 20 (Ky. Ct. App. 1854) (decided under prior law).

Research References and Practice Aids

Kentucky Bench & Bar.

Ratliff, Kentucky Probate — A Simple Overview, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 16.

Kentucky Law Journal.

Kentucky Law Survey, Graham, Domestic Relations, 71 Ky. L.J. 445 (1982-83).

395.030. Jurisdiction of administration of intestate’s estate.

When a person dies intestate, the District Court which would have had jurisdiction to probate his will, had he made a will, shall have jurisdiction to grant administration on his estate.

History. 3894: amend. Acts 1976 (Ex. Sess.), ch. 14, § 383, effective January 2, 1978.

NOTES TO DECISIONS

1.Residence.

Where the deceased had broken up his home in one county and shipped his household goods to a second county and was killed in a third county, the second county had jurisdiction to appoint a personal representative. Louisville & N. R. Co. v. Shumaker's Adm'x, 112 Ky. 431 , 53 S.W. 12, 21 Ky. L. Rptr. 803 , 1899 Ky. LEXIS 188 ( Ky. 1899 ).

Where a party left Arkansas with the avowed purpose of coming to Ballard County, Kentucky, and making her home there but died en route to Ballard County and without ever having reached there, she was not a resident of Ballard County, and the county (now District) Court of that county did not have the power to appoint an administrator of the estate of such decedent. Rudolph v. Wetherington's Adm'r, 180 Ky. 271 , 202 S.W. 652, 1918 Ky. LEXIS 55 ( Ky. 1918 ).

Appointment of an administrator by the county (now District) Court of a county other than that of a decedent’s residence is void. Jewel Tea Co. v. Walker's Adm'r, 290 Ky. 328 , 161 S.W.2d 66, 1942 Ky. LEXIS 400 ( Ky. 1942 ).

Upon death of a resident, the county (now District) Court of the county of his residence at the time of his death has exclusive jurisdiction to grant administration. Jewel Tea Co. v. Walker's Adm'r, 290 Ky. 328 , 161 S.W.2d 66, 1942 Ky. LEXIS 400 ( Ky. 1942 ).

All county (now District) Courts in Kentucky have jurisdiction of the general subject of appointment of administrators of decedents’ estates, but the jurisdiction of a particular county (now District) Court to appoint an administrator for a particular estate depends upon the fact of residence of the decedent within the county. Collins v. Duff, 283 S.W.2d 179, 1955 Ky. LEXIS 286 ( Ky. 1955 ).

2.Debts Owed Decedent.

If one dies intestate in Memphis, Tennessee and owes debts in Jefferson County, Kentucky, the Jefferson County Court has jurisdiction to appoint an administrator of his estate. Hyatt v. James's Adm'r, 71 Ky. 9 , 1871 Ky. LEXIS 4 ( Ky. 1871 ) (decided under prior law). See Louisville & N. R. Co. v. Shumaker's Adm'x, 108 Ky. 263 , 56 S.W. 155, 21 Ky. L. Rptr. 1701 , 1900 Ky. LEXIS 35 ( Ky. 1900 ) (decided under prior law).

If there are debts owing the decedent in a given county, the county (now District) Court of that county has jurisdiction to appoint an administrator of the decedent’s estate, even though the creditors located in that county have a setoff against the claims. Hyatt v. James's Adm'r, 71 Ky. 9 , 1871 Ky. LEXIS 4 ( Ky. 1871 ) (decided under prior law).

Where one was a resident of Florida and had debts owing to him in Mercer County, Kentucky, the county (now District) Court of that county had jurisdiction to appoint an administrator even though no administrator was appointed in Florida, and such an administrator was an ancillary administrator, but the laws of Florida governed in the distribution of the estate. Stell v. Williams' Adm'r, 233 Ky. 441 , 26 S.W.2d 8, 1930 Ky. LEXIS 586 ( Ky. 1930 ).

3.Nonresident.

The rule is that the county (now District) Court may appoint an administrator for the estate of a decedent domiciled in a foreign state at the time of his death if he left assets and debts within the jurisdiction of the court. Whisler v. Allen, 380 S.W.2d 70, 1964 Ky. LEXIS 264 ( Ky. 1964 ).

4.— Death from Personal Injury.

Where the deceased was a resident of Indiana and had no property in Kentucky but was killed by a railroad in Jefferson County, Kentucky, an administrator could be appointed in Jefferson County to recover on the statutory right of action. Brown's Adm'r v. Louisville & N. R. Co., 97 Ky. 228 , 30 S.W. 639, 17 Ky. L. Rptr. 145 , 1895 Ky. LEXIS 183 ( Ky. 1895 ).

Upon death of a nonresident as a result of personal injury received in this state when the only property in this state is the right of action for death, the county (now District) Court of the county wherein such injury was received has jurisdiction to grant administration. Jewel Tea Co. v. Walker's Adm'r, 290 Ky. 328 , 161 S.W.2d 66, 1942 Ky. LEXIS 400 ( Ky. 1942 ).

5.— Death While Action Pending.

Where a nonresident of this state was injured in another state and sued in Kentucky to recover damages but died while the action was pending, the county (now District) Court of the county in which the action was pending had the power to appoint an administrator to revive the cause of action. Austin's Adm'r v. Pittsburg, C., C. & S. L. R. Co., 122 Ky. 304 , 91 S.W. 742, 28 Ky. L. Rptr. 1235 , 1906 Ky. LEXIS 52 ( Ky. 1906 ).

6.County Courts.
7.— Jurisdiction.

Jurisdiction to appoint administrators is vested exclusively in county (now District) Courts and, while their actions are reviewable, they should not be interfered with except where powers have been exceeded or discretion abused. Gresham v. Stacy, 287 Ky. 114 , 152 S.W.2d 290, 1941 Ky. LEXIS 506 ( Ky. 1941 ).

8.— Collateral Attack.

Where the decedent lived, was injured, and died in Fayette County, the county (now District) Court of Bourbon County had no jurisdiction to appoint an administrator of his estate so as to recover for his death in the Bourbon Circuit Court, and the jurisdiction of the Bourbon County Court was subject to collateral attack. Walter's Adm'r v. Kentucky Traction & Terminal Co., 206 Ky. 100 , 266 S.W. 887, 1924 Ky. LEXIS 261 ( Ky. 1924 ).

Cited:

Bartlett v. Buckner’s Adm’r, 265 Ky. 747 , 97 S.W.2d 805, 1936 Ky. LEXIS 576 ( Ky. 1936 ); Hite’s Adm’r v. Hite’s Ex’r, 265 Ky. 786 , 97 S.W.2d 811, 1936 Ky. LEXIS 578 (1936); Schmitt v. Kentucky Trust Co., 429 S.W.2d 839, 1968 Ky. LEXIS 756 ( Ky. 1968 ).

Research References and Practice Aids

Cross-References.

Jurisdiction to probate wills, KRS 394.140 .

Kentucky Bench & Bar.

Ratliff, Kentucky Probate — A Simple Overview, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 16.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Probate Procedures Dispensing with Administration, § 232.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Probate Procedures Testate and Intestate, § 233.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Venue and Change of Venue, § 38.00.

395.040. Administrator — Persons entitled to be appointed — Discovery of will.

  1. The court shall grant administration to the relations of the deceased who apply for administration, preferring the surviving husband or wife, or if the surviving husband or wife does not nominate a suitable administrator, then such others as are next entitled to distribution, or one (1) or more of them whom the court judges will best manage the estate.
  2. If no person mentioned in subsection (1) applies for administration within sixty (60) days from the death of an intestate, the court may grant administration to a creditor, or to any other person, in its discretion.
  3. No master or other commissioner whose duty it is to settle the accounts of a personal representative shall be appointed an administrator.
  4. If a will is afterwards produced and proved, the administration shall cease, and the court may grant a certificate of the probate of the will, or, in the proper case, letters of administration with the will annexed.

History. 3867, 3896, 3897: amend. Acts 1974, ch. 299, § 14; 1982, ch. 277, § 11, effective July 15, 1982.

NOTES TO DECISIONS

1.Application.

This section is applicable only to cases of administration, and has no application to testate estates where an executor is appointed in the will. Adams v. Readnour, 134 Ky. 230 , 120 S.W. 279, 1909 Ky. LEXIS 374 ( Ky. 1909 ).

This section has no application where the executor of the estate has been removed for cause. Liberty Bank & Trust Co. v. Kentucky Title Trust Co., 239 Ky. 263 , 39 S.W.2d 258, 1931 Ky. LEXIS 761 ( Ky. 1931 ).

2.Administrator.

A contract to pay one to act as an administrator upon the estate of the obligor’s father and mother is not prohibited by law or public policy, and such a contract is supported by good consideration. Clark v. Constantine, 66 Ky. 652 , 1868 Ky. LEXIS 46 ( Ky. 1868 ) (decided under prior law).

Where one is prematurely appointed administrator, the appointment is not void. Leach v. Owensboro C. R. Co., 137 Ky. 292 , 125 S.W. 708, 1910 Ky. LEXIS 569 ( Ky. 1910 ).

The grandmother of decedent’s children is not “entitled to distribution” and has no preference right to be granted administration of decedent’s estate under this section. Wall v. Bingham, 296 Ky. 13 , 175 S.W.2d 1010, 1943 Ky. LEXIS 759 ( Ky. 1943 ).

Appointment as an administrator of an estate is a valuable right and party entitled to it should not be deprived of it without legal cause. Howd v. Clay, 312 Ky. 508 , 228 S.W.2d 437, 1950 Ky. LEXIS 695 ( Ky. 1950 ).

Where only one qualified person applied for appointment as administrator and the heirs and distributees agreed to his appointment, there was no justification for the county (now District) Court refusing to appoint him and the circuit court properly ordered his appointment. Holt v. Kellar, 319 S.W.2d 45, 1958 Ky. LEXIS 162 ( Ky. 1958 ).

Personal antagonism between a person and a beneficiary under a will does not prevent the person from serving as administrator of the estate. Skaggs v. Cook, 374 S.W.2d 857, 1964 Ky. LEXIS 395 ( Ky. 1964 ).

The right conferred by this section to be appointed administrator of an estate is a valuable one and a person entitled to such appointment cannot be deprived of it without legal cause. Skaggs v. Cook, 374 S.W.2d 857, 1964 Ky. LEXIS 395 ( Ky. 1964 ).

3.— Mandatory Preference.

Where the deceased is survived only by one child and that child applies to be appointed administrator of the decedent’s estate, and is qualified by law to so act, the court has no discretion other than to appoint the applicant. Buckner v. Buckner, 27 Ky. L. Rptr. 1032 (1905).

Where the deceased is survived by brothers, sisters, nephews and nieces, and the only qualified brother applies to be appointed administrator, the court must appoint him in preference to a stranger, even though the other relatives request the appointment of the stranger. Moran v. Moran's Adm'r, 172 Ky. 343 , 189 S.W. 248, 1916 Ky. LEXIS 209 ( Ky. 1916 ).

Where the deceased is survived by only an adopted daughter and collateral kindred, the adopted daughter is entitled to be appointed administratrix of the decedent’s estate, if qualified, and the county (now District) Court has no discretion in the matter. Hood v. Higgins' Curator, 225 Ky. 718 , 9 S.W.2d 1078, 1928 Ky. LEXIS 860 ( Ky. 1928 ).

Where the deceased was survived by a sister and two nieces, all of whom were qualified to administer the estate, and the sister relinquished her right and, pursuant to her motion, the court appointed a stranger as administrator and the two nieces moved the court to set aside the order and appoint them, they were entitled to the relief requested. Lalley v. Lalley's Adm'r, 256 Ky. 50 , 75 S.W.2d 544, 1934 Ky. LEXIS 346 ( Ky. 1934 ).

Under this section, it is mandatory that properly qualified members of the class described in subsection (1) be given preference over members of the class described in subsection (2); however, as between members of the class described in subsection (1), there is no mandatory preference, the court retaining some discretionary power. Mullins v. Mullins, 307 Ky. 748 , 212 S.W.2d 272, 1948 Ky. LEXIS 819 ( Ky. 1948 ).

4.— Waiver of Right to Qualify.

Fact that person qualified for appointment as administratrix requested that another person be appointed in county (now District) Court of county other than that of deceased’s residence would not estop her from claiming right to appointment in county (now District) Court of county of deceased’s residence, since waiver of her right to qualify in a court not having jurisdiction was a mere nullity, and did not mislead or prejudice other persons entitled to administration. Barnett's Adm'r v. Pittman, 282 Ky. 162 , 137 S.W.2d 1098, 1940 Ky. LEXIS 134 ( Ky. 1940 ).

When surviving husband waived right to appointment by requesting appointment of another, deceased’s mother was entitled to appointment, there being no children. Barnett's Adm'r v. Pittman, 282 Ky. 162 , 137 S.W.2d 1098, 1940 Ky. LEXIS 134 ( Ky. 1940 ).

5.— With Will Annexed.

The appointment of an administrator with will annexed of another than the one entitled thereto is not void but erroneous, and is a final order from which an appeal must be taken within 60 days. Phillips v. Hundley, 135 Ky. 269 , 122 S.W. 147, 1909 Ky. LEXIS 284 ( Ky. 1909 ).

A county (now District) Court, in appointing an administrator with the will annexed, must conform with this section as to preference. Hays v. Coy, 264 S.W.2d 258, 1954 Ky. LEXIS 657 ( Ky. 1954 ).

6.— Will Found Later.

Where a will was subsequently discovered, the prior appointment of the administratrix was voidable, not void. Rabold v. Roberts, 444 S.W.2d 536, 1969 Ky. LEXIS 210 ( Ky. 1969 ).

Because there was no evidence that the administrator had any knowledge of the will and the record was void of any facts that would have led the administrator to expect that the deceased had a will, the administrator’s appointment was effective with the signing of an order by the district judge under KRS 395.105 ; his administration would not cease until the putative will was produced and proved pursuant to KRS 395.040(4), which had not yet occurred. Bennett v. Nicholas, 250 S.W.3d 673, 2007 Ky. App. LEXIS 330 (Ky. Ct. App. 2007).

7.— Committee for Incompetent Heir.

Where the deceased is survived by an only son who has been adjudged by a court of competent jurisdiction to be an idiot and a committee has been appointed for him, the committee of the incompetent son is entitled to be appointed administrator of the decedent’s estate as against the brother of the deceased. Anderson's Committee v. Anderson's Adm'r, 161 Ky. 18 , 170 S.W. 213, 1914 Ky. LEXIS 6 ( Ky. 1914 ) ( Ky. 1914 ).

There is no fundamental conflict of interest between the office of administrator of an estate and committee for an incompetent heir. Haswell v. Wedding, 277 Ky. 729 , 127 S.W.2d 152, 1939 Ky. LEXIS 717 ( Ky. 1939 ).

8.— Parties Equally Qualified.

Where two parties are equally entitled under this section to appointment as administrator of an estate and one states that he would pursue an action to set aside the will of the testator’s wife which, if successful, would substantially increase the estate of the testator and the other stated that he would not pursue such action, the court erred in refusing to appoint the applicant who intended to pursue the action. Skaggs v. Cook, 374 S.W.2d 857, 1964 Ky. LEXIS 395 ( Ky. 1964 ).

9.— Denial of Appointment.

Where the relative who applies for appointment as an administrator and is entitled thereto under this section is disqualified or possesses disqualifications that would be ground for removal under KRS 395.160 , he should not be appointed. Hunt v. Crocker, 246 Ky. 338 , 55 S.W.2d 20, 1932 Ky. LEXIS 763 ( Ky. 1932 ).

Fact that there would be a controversy over insurance policy, ownership of land, and rights of deceased and surviving husband in store and in corporate stock was not grounds for denying appointment of deceased’s mother as administratrix, where she had no interest in controversies adverse to the estate. Barnett's Adm'r v. Pittman, 282 Ky. 162 , 137 S.W.2d 1098, 1940 Ky. LEXIS 134 ( Ky. 1940 ).

The grounds for removal prescribed in KRS 395.160 authorize and require denial of the right to qualify if the grounds exist at the time the appointment is sought. Barnett's Adm'r v. Pittman, 282 Ky. 162 , 137 S.W.2d 1098, 1940 Ky. LEXIS 134 ( Ky. 1940 ).

Where grounds exist, prior to appointment, which would justify removal of an administrator under KRS 395.160 , appointment in the first instance may properly be denied. Mullins v. Mullins, 307 Ky. 748 , 212 S.W.2d 272, 1948 Ky. LEXIS 819 ( Ky. 1948 ). See Howd v. Clay, 312 Ky. 508 , 228 S.W.2d 437, 1950 Ky. LEXIS 695 ( Ky. 1950 ).

10.— Moral Character.

Evidence that deceased’s mother had given birth to bastard children more than 30 years ago was not sufficient to justify denying her appointment as administratrix, where evidence was that she had been of good moral character since that time. Barnett's Adm'r v. Pittman, 282 Ky. 162 , 137 S.W.2d 1098, 1940 Ky. LEXIS 134 ( Ky. 1940 ).

Whether bad moral character is grounds for denying appointment as administrator is not decided. Barnett's Adm'r v. Pittman, 282 Ky. 162 , 137 S.W.2d 1098, 1940 Ky. LEXIS 134 ( Ky. 1940 ).

11.— Surviving Spouse.

Where the surviving husband is the sole distributee residing in the state, he has the absolute right to be appointed as administrator with the will annexed and may nominate a suitable and competent party and the court has no discretion but to appoint the nominee and, where such is done, the county (now District) Court has no power to appoint a coadministrator. Louisville Trust Co. v. Bingham, 178 Ky. 573 , 199 S.W. 58, 1917 Ky. LEXIS 764 ( Ky. 1917 ).

The widow’s right to administer the estate of her deceased husband is not absolute but contingent. Egbert v. Egbert, 186 Ky. 486 , 217 S.W. 365, 1920 Ky. LEXIS 54 ( Ky. 1920 ).

Wife of deceased was entitled under this section to be appointed administrator where evidence failed to show that there was any reason to disqualify her. Barnett's Adm'r v. Pittman, 282 Ky. 162 , 137 S.W.2d 1098, 1940 Ky. LEXIS 134 ( Ky. 1940 ).

Where surviving wife, who had applied to be appointed administrator, had married deceased when she was in her thirties and he was about 73 — in the 12 years between time of marriage and deceased’s death, the wife had divorced him once and then remarried him, filed suit for divorce at another time and separated from him three times — she was so indifferent to the estate that she had no idea of its extent and did not know names of husband’s children, and first stated in her application that she was not indebted to the estate and then amended it to show differently, the court properly appointed deceased’s son as administrator. Mullins v. Mullins, 307 Ky. 748 , 212 S.W.2d 272, 1948 Ky. LEXIS 819 ( Ky. 1948 ).

The preference given the surviving husband or wife under this section includes the right of the survivor to nominate a suitable administrator under the provisions of subsection (2) of KRS 395.015 . Treas v. Treas, 240 S.W.2d 593, 1951 Ky. LEXIS 984 ( Ky. 1951 ).

Where the widow had failed to make a timely application for administration or to designate a suitable administrator, the court could, in its discretion, respect the widow’s choice of an administrator. Beddow v. Beddow's Adm'r, 267 S.W.2d 87, 1953 Ky. LEXIS 1230 (Ky. Ct. App. 1953).

12.— — Adverse Interests.

Where deceased’s wife, who had not lived with him for 12 years, was asserting claim to her dower interest, which she stated she would pay to herself if appointed, and was attempting to have her release of all claims to the estate set aside, she was properly denied appointment on the ground that she occupied an adverse and antagonistic position. Howd v. Clay, 312 Ky. 508 , 228 S.W.2d 437, 1950 Ky. LEXIS 695 ( Ky. 1950 ).

Where the surviving spouse is disqualified as administrator with the will annexed due to interests antagonistic to the will, the coadministrator chosen by the surviving spouse is also disqualified and the next in order of preference under this section should be appointed. Cosby v. Hays, 257 S.W.2d 575, 1953 Ky. LEXIS 788 ( Ky. 1953 ).

13.— — Divorced Wife.

Where the deceased is survived by an infant child and a divorced wife, the court may immediately appoint the father of the decedent as administrator of his estate. Davis' Adm'r v. Davis, 162 Ky. 316 , 172 S.W. 665, 1915 Ky. LEXIS 68 ( Ky. 1915 ).

14.— — Validity of Marriage.

The pendency of a suit attacking the validity of the marriage of the widow and decedent does not deprive her of the right to qualify as administratrix or to designate a suitable person for the trust. Beddow v. Beddow's Adm'r, 267 S.W.2d 87, 1953 Ky. LEXIS 1230 (Ky. Ct. App. 1953).

Where the deceased’s alleged widow had nominated another for appointment as administrator of the deceased’s estate, which consisted solely of a claim for damages arising from the accident in which he was killed, the court did not abuse its discretion in appointing the deceased’s father, who could be expected to claim the proceeds of such claim as the only heir of the deceased on the ground that the alleged widow was never validly married to the decedent. Yeary v. Yeary, 351 S.W.2d 515, 1961 Ky. LEXIS 175 ( Ky. 1961 ).

Where intestate decedent and widow had married six days prior to entry of final divorce decree between decedent and his prior wife, decedent’s son had no standing to attack validity of the marriage ten years later, since subsection (2)(b) of KRS 403.120 allows only parties to the marriage to attack it, and only then within one year of obtaining knowledge of a prohibitive condition; thus, the district court correctly appointed the widow as administratrix of the estate under subsection (1) of this section despite the fact that the bigamous marriage was void and prohibited under KRS 402.020 . Ferguson v. Ferguson, 610 S.W.2d 925, 1980 Ky. App. LEXIS 410 (Ky. Ct. App. 1980).

15.— Relatives.

The county (now District) Court, in the exercise of its jurisdiction, must determine the degree of the relations entitled to be appointed administrator of the decedent’s estate and, if it commits an error, the judgment appointing the administrator is not void but merely erroneous. Buckner's Adm'rs v. Louisville & N. R. Co., 120 Ky. 600 , 87 S.W. 777, 27 Ky. L. Rptr. 1009 , 1905 Ky. LEXIS 141 ( Ky. 1905 ). See Phillips v. Hundley, 135 Ky. 269 , 122 S.W. 147, 1909 Ky. LEXIS 284 ( Ky. 1909 ).

A relative who is not entitled to share in the estate has no control over the appointment of an administrator, even though the heirs entitled to distribution are all nonresidents. Ellwanger v. Ellwanger's Adm'r, 278 Ky. 584 , 129 S.W.2d 127, 1939 Ky. LEXIS 467 ( Ky. 1939 ).

The relations referred to in this section are those entitled to distribution in the estate of the deceased. Ellwanger v. Ellwanger's Adm'r, 278 Ky. 584 , 129 S.W.2d 127, 1939 Ky. LEXIS 467 ( Ky. 1939 ).

16.— Creditors.

Appointment of creditor as administrator, made the day after death of decedent, was voidable but not void. Ellwanger v. Ellwanger's Adm'r, 278 Ky. 584 , 129 S.W.2d 127, 1939 Ky. LEXIS 467 ( Ky. 1939 ).

If there is no resident relative entitled to distribution, the court may appoint a creditor as administrator. Ellwanger v. Ellwanger's Adm'r, 278 Ky. 584 , 129 S.W.2d 127, 1939 Ky. LEXIS 467 ( Ky. 1939 ).

17.— Strangers.

Where the decedent was survived by no kindred residing in this state, and a stranger was appointed administrator immediately after his death upon the motion of a creditor, two nonresident sisters who applied for the appointment of another were not eligible for the appointment themselves and were not entitled to designate the appointee, and the original appointment was valid. Spayd's Adm'r v. Brown, 102 S.W. 823, 31 Ky. L. Rptr. 438 (1907), limited, Louisville Trust Co. v. Bingham, 178 Ky. 573 , 199 S.W. 58, 1917 Ky. LEXIS 764 ( Ky. 1917 ).

Where none of the relatives apply to be appointed administrator of the intestate estate, the court may appoint a stranger as administrator of the decedent’s estate. Bennett v. Bennett's Adm'r, 134 Ky. 444 , 120 S.W. 372, 1909 Ky. LEXIS 397 ( Ky. 1909 ).

Where a stranger has been appointed administrator of the estate, and a son of the decedent moves that the appointment be set aside and he be permitted to qualify as administrator, he is entitled to the relief asked for, if not disqualified for some reason. Watkins v. Watkins' Adm'r, 136 Ky. 266 , 124 S.W. 301, 1910 Ky. LEXIS 478 ( Ky. 1910 ).

Where a stranger to the blood of the deceased has been appointed administrator under this section and proceeds to sue for damages for the wrongful death of the deceased, the defendant cannot call into question the validity of the appointment. But the next of kin might proceed to question the appointment in the county (now District) Court. Chesapeake & O. R. Co. v. Banks' Adm'r, 142 Ky. 746 , 135 S.W. 285, 1911 Ky. LEXIS 290 ( Ky. 1911 ).

Where none of the relatives of the deceased apply for appointment as administrator and the court appoints a stranger as administrator, the court cannot later remove the administrator so appointed, even though he was mistaken in believing him to be related to the deceased at the time of the appointment, the relatives having waived their rights by failing to apply. In re Williams' Adm'r, 158 Ky. 61 , 164 S.W. 307, 1914 Ky. LEXIS 558 ( Ky. 1914 ).

Where a resident of this state dies intestate, leaving no relatives or creditors in this state, the court may immediately appoint a person representative who is a stranger. Thompson v. Archie's Adm'r, 158 Ky. 590 , 165 S.W. 977, 1914 Ky. LEXIS 672 ( Ky. 1914 ).

18.— Nonresident Killed in State.

Where a nonresident intestate, having at the time no domicile in the state and no next of kin, distributee, or creditor residing therein, is killed in a county of the state by the negligence of any person or corporation, the county (now District) Court may appoint an administrator at the first term of the court succeeding the death. Young's Adm'r v. Louisville & N. R. Co., 121 Ky. 483 , 89 S.W. 475, 28 Ky. L. Rptr. 451 , 1905 Ky. LEXIS 228 ( Ky. 1905 ). See McFarland's Adm'r v. Louisville & N. R. Co., 130 Ky. 172 , 113 S.W. 82, 1908 Ky. LEXIS 253 ( Ky. 1908 ).

Cited:

Cecil v. Farmers Nat’l Bank, 245 S.W.2d 430, 1951 Ky. LEXIS 1255 ( Ky. 1951 ); Baesler v. R. E. Bell’s Ex’x, 299 S.W.2d 605, 1956 Ky. LEXIS 47 ( Ky. 1956 ); Modern Bakery, Inc. v. Brashear, 405 S.W.2d 742, 1966 Ky. LEXIS 269 ( Ky. 1966 ); Richardson v. Dodson, 832 S.W.2d 888, 1992 Ky. LEXIS 98 ( Ky. 1992 ).

Opinions of Attorney General.

As a general principle of law, the preparation and filing of partial and final settlements in an estate in the county (now District) Court by a fiduciary who is not a lawyer would constitute the unauthorized practice of law as provided by this section, unless the fiduciary has a beneficial interest in the corpus of the estate and acts without consideration for his services to come within the exception to RCA3.020 (see now SCR 3.020 ). OAG 73-80 .

Research References and Practice Aids

Cross-References.

Persons to whom property descends, KRS 391.010 .

Trust company may act as executor, administrator or curator, KRS 286.3-210 .

Kentucky Law Journal.

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Probate Procedures Dispensing with Administration, Form 235.02.

Caldwell’s Kentucky Form Book, 5th Ed., Waiver of Right to Administration, Form 234.04.

Petrilli, Kentucky Family Law, Antenuptial Agreements, § 13.10.

Petrilli, Kentucky Family Law, Status of Wife, § 11.2.

395.050. Administrator with will annexed — Appointment — Functions.

  1. If no executor is appointed by the will, or if all the executors named in the will die, refuse the executorship or fail to give bond the court may grant administration with the will annexed to the person who would have been entitled to administration if there had been no will, but no person shall be eligible to appointment as administrator with the will annexed whose interests are antagonistic to the provisions of the will. Failure to give bond shall amount to refusal to act as executor.
  2. An administrator with the will annexed shall possess and exercise all power and authority, have the same rights and interest and be responsible in like manner as the executors named in it.

History. 3891, 3892.

NOTES TO DECISIONS

1.Administrator with Will Annexed.

When the will has been probated and the court appoints an “administrator,” the order will be construed as appointing an administrator with will annexed. Young's Adm'r v. Chesapeake & O. R. Co., 136 Ky. 784 , 125 S.W. 241, 1910 Ky. LEXIS 542 ( Ky. 1910 ).

A court, in appointing an administrator under this section, must conform with the order of preference in appointment of the administrator prescribed by KRS 395.040 . Hays v. Coy, 264 S.W.2d 258, 1954 Ky. LEXIS 657 ( Ky. 1954 ).

2.— Powers and Duties.

An administrator with will annexed is clothed with all the powers and duties of an executor. De Haven v. De Haven's Adm'r, 104 Ky. 41 , 46 S.W. 215, 20 Ky. L. Rptr. 663 , 1898 Ky. LEXIS 129 ( Ky. 1898 ).

One who has been appointed administrator with will annexed has the same powers as an executor. Sims v. Birdsong's Adm'r, 50 S.W. 993, 21 Ky. L. Rptr. 75 (1899). See Wilson v. Wilson, 188 Ky. 53 , 221 S.W. 874, 1920 Ky. LEXIS 230 ( Ky. 1920 ).

The administrator with the will annexed has all the powers of the executor named in the will, whether that executor qualified or not, if, at the time of appointment, the office is vacant, whether by failure to qualify or by resignation or by death after qualifying. Harding's Adm'r v. Weisiger, 109 S.W. 890, 33 Ky. L. Rptr. 170 (1908).

If the duties imposed upon executors are not executorial in their nature but personal to the executor named in the will, this class of powers and duties do not pass to the administrator with the will annexed, and are not covered by this section. Schlickman v. Citizens' Nat'l Bank, 139 Ky. 268 , 129 S.W. 823, 1910 Ky. LEXIS 30 ( Ky. 1910 ). See Schlickman v. Dusing, 180 Ky. 506 , 203 S.W. 295, 1918 Ky. LEXIS 100 ( Ky. 1918 ).

Unless the instrument giving an executor a power expressly declares a contrary intention, such a power will pass to the administrator with the will annexed. Mitchell v. Powell, 312 Ky. 714 , 229 S.W.2d 480, 1950 Ky. LEXIS 747 ( Ky. 1950 ).

When a fiduciary is distributing assets of an estate, the bequests can only be satisfied after taking into consideration the appreciated value and depreciated value of all assets at the time of distribution; therefore, the administratrix with the will annexed was required to divide the appreciated or depreciated assets fairly, impartially, and equitably in satisfaction of the bequests of the testatrix. Pitts v. Estate of Gilbert, 672 S.W.2d 70, 1984 Ky. App. LEXIS 519 (Ky. Ct. App. 1984).

By virtue of the provisions of this section, the administrator with the will annexed has all the same rights as the executor named in the will; broad discretion has been given, and yet the courts will not hesitate to intervene if necessary. Pitts v. Estate of Gilbert, 672 S.W.2d 70, 1984 Ky. App. LEXIS 519 (Ky. Ct. App. 1984).

3.— — Power of Sale.

The administrator who is appointed to succeed an executor named in the will and who died has the power to sell the land and convey a good title thereto where the will directs that the land be sold and the proceeds of the sale divided. Harding's Adm'r v. Weisiger, 109 S.W. 890, 33 Ky. L. Rptr. 170 (1908). See Leonard v. Hale's Adm'r, 144 Ky. 77 , 137 S.W. 866, 1911 Ky. LEXIS 569 ( Ky. 1911 ); Haggin v. Straus, 148 Ky. 140 , 146 S.W. 391, 1912 Ky. LEXIS 408 ( Ky. 1912 ).

Where the will directs that the land be sold and the proceeds divided, and appoints no executor, the administrator with will annexed appointed by the court has the power to carry out all provisions of the will; hence, he has the power to sell the land. Evans v. Evans, 134 Ky. 637 , 121 S.W. 619, 1909 Ky. LEXIS 427 ( Ky. 1909 ). See Dunevant v. Radford's Adm'rs, 140 Ky. 433 , 131 S.W. 185, 1910 Ky. LEXIS 275 ( Ky. 1910 ); Hanna v. Prewitt, 153 Ky. 310 , 155 S.W. 726, 1913 Ky. LEXIS 830 ( Ky. 1913 ); Miller v. Miller's Guardian, 236 Ky. 45 , 32 S.W.2d 539, 1930 Ky. LEXIS 672 ( Ky. 1930 ).

The administrator with will annexed gets his authority from the will and, if the will does not direct that the real estate is to be sold, the court has no authority to direct a sale thereof for distribution. Alexander v. Hendricks, 201 Ky. 677 , 258 S.W. 81, 1924 Ky. LEXIS 606 ( Ky. 1924 ).

Where testator devised his real estate to his wife with power of sale, and also named his wife executrix, the power of sale belonged to the wife as life tenant and not as executrix, and did not pass, upon her death, to the administrator de bonis non of her husband’s estate. Strode v. Kramer, 293 Ky. 354 , 169 S.W.2d 29, 1943 Ky. LEXIS 631 ( Ky. 1943 ).

A successor executor or trustee, or an administrator with the will annexed, may exercise power to sell real estate granted by will to original executor named in the will, unless there is an express provision or clear indication in the will that the power should be limited to the named executor. Penn v. Pennsylvania Co. for Ins., etc., 294 Ky. 271 , 171 S.W.2d 437, 1943 Ky. LEXIS 431 ( Ky. 1943 ). See Vanhoose v. Brooks, 306 Ky. 639 , 208 S.W.2d 963, 1948 Ky. LEXIS 627 ( Ky. 1948 ).

If the power of sale was granted to the executors as such and by reason of their office and not because of personal confidence in the persons named, then the power of sale passes to the administratrix under the provisions of this section which provides that an administrator with the will annexed succeeds to the powers of an executor who for any reason fails to qualify. Tatman v. Cook's Adm'x, 302 Ky. 529 , 195 S.W.2d 72, 1946 Ky. LEXIS 707 ( Ky. 1946 ).

Where testator’s will gave his widow a life estate in his real estate and provided that the named executors could sell the real estate during his widow’s life, the persons named executors, after being discharged as executors, could qualify as administrators with the will annexed and validly exercise the power to sell the real estate. Mitchell v. Powell, 312 Ky. 714 , 229 S.W.2d 480, 1950 Ky. LEXIS 747 ( Ky. 1950 ).

A power to sell real estate conferred upon an executor passes to an administrator with the will annexed absent an express intention otherwise in the instrument. Pitts v. Estate of Gilbert, 672 S.W.2d 70, 1984 Ky. App. LEXIS 519 (Ky. Ct. App. 1984).

4.— Probate Set Aside.

Where one has been appointed administrator with will annexed and, upon appeal, the probate of the will is set aside, the administrator so appointed may be removed and an administrator appointed under KRS 395.040 . Hamilton v. Williams, 133 Ky. 558 , 118 S.W. 358, 1909 Ky. LEXIS 204 ( Ky. 1909 ).

5.— Death of Executor.

Where a testator’s will left all of his property to his wife to use, sell, or transfer during her life and at her death any remaining property was to go to his children in equal shares and named his wife as executrix and she qualified, administered the estate, and filed her final report, which was approved, the executors of the wife’s estate could not enjoin the enforcement of an order appointing administrators de bonis non of the testator’s estate after his wife’s death, because the wife’s administrators had no interest in the testator’s estate and, if they had, the proper method of opposing the appointment was by appeal to the Circuit Court. Williams v. Ratcliffe, 402 S.W.2d 432, 1966 Ky. LEXIS 365 ( Ky. 1966 ).

6.— Executor Unqualified.

If the executor appointed in the will fails to qualify, such failure must amount to a refusal before the court is justified in appointing an administrator with will annexed without notice to the appointed executor. Adams v. Readnour, 134 Ky. 230 , 120 S.W. 279, 1909 Ky. LEXIS 374 ( Ky. 1909 ).

7.— Interests Antagonistic to Will.

The mere fact that the applicant for appointment, as administratrix with will annexed, received a smaller legacy than others does not show antagonism so as to disqualify her to act as administratrix with will annexed. Lalley v. Lalley's Adm'r, 256 Ky. 50 , 75 S.W.2d 544, 1934 Ky. LEXIS 346 ( Ky. 1934 ).

Before disqualification can attach, prospective appointee must possess or pretend to possess some claim to part of the estate which, if allowed or asserted, would diminish shares of beneficiaries, or subject them to delay, expense, or annoyance. Gresham v. Stacy, 287 Ky. 114 , 152 S.W.2d 290, 1941 Ky. LEXIS 506 ( Ky. 1941 ).

Daughter of decedent having no claim against personal estate other than her aliquot portion under will was entitled to appointment, although her prior assertion of title to decedent’s real estate had been declared invalid, where will did not vest personal representative with power over real estate. Gresham v. Stacy, 287 Ky. 114 , 152 S.W.2d 290, 1941 Ky. LEXIS 506 ( Ky. 1941 ).

Where by will a decedent left listed investments to her nieces and nephews and her husband claimed that one such “investment” was a gift to himself and that another no longer existed, since it had been sold and the proceeds reinvested in the names of himself and the decedent jointly with right of survivorship, the husband had interests antagonistic to the will so that he could not be appointed administrator with the will annexed. Cosby v. Hays, 257 S.W.2d 575, 1953 Ky. LEXIS 788 ( Ky. 1953 ).

Personal antagonism between the deceased’s husband and her brother was not sufficient to disqualify the brother from the office of administrator with the will annexed. Hays v. Coy, 264 S.W.2d 258, 1954 Ky. LEXIS 657 ( Ky. 1954 ).

Where it was to the interest of the administrator, as an heir at law, to have the will construed so as to have only a small portion of the estate pass under the will, such interest was not so antagonistic to the will as to disqualify him from the office of administrator with the will annexed. Hays v. Coy, 264 S.W.2d 258, 1954 Ky. LEXIS 657 ( Ky. 1954 ).

8.— Strangers.

This section does not give preference to blood relations but to distributees and, where the distributees request the appointment of a stranger, he may be immediately appointed. Hilton v. Hilton's Adm'r, 109 S.W. 905, 33 Ky. L. Rptr. 276 (1908).

When the administrator resigns and the court immediately appoints a stranger to the vacated office, without notice to the distributees, the order is not void and cannot be collaterally attacked. Cunningham v. Clay's Adm'r, 112 S.W. 852 ( Ky. 1908 ).

Cited:

Sims v. Birdsong’s Adm’r, 50 S.W. 993, 21 Ky. L. Rptr. 75 (1899); Baesler v. R. E. Bell’s Ex’x, 299 S.W.2d 605, 1956 Ky. LEXIS 47 ( Ky. 1956 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Order Appointing Administrator with Will Annexed (AOC 806), Form 234.05.

395.060. Continuation of administration when powers of representatives cease.

When the powers of one (1) personal representative cease, the remaining personal representatives may carry the trust into execution. If there is no remaining personal representative, an administrator de bonis non, or, if there is a will, an administrator with the will annexed, shall be appointed.

History. 3845.

NOTES TO DECISIONS

1.Administrator De Bonis Non.
2.— Powers Passing to.

Where testator devised his real estate to his wife with power of sale, and also named his wife executrix, the power of sale belonged to the wife as life tenant and not as executrix, and did not pass, upon her death, to the administrator de bonis non of her husband’s estate. Strode v. Kramer, 293 Ky. 354 , 169 S.W.2d 29, 1943 Ky. LEXIS 631 ( Ky. 1943 ).

3.— Recovery from Predecessor.

An administrator de bonis non can recover from his predecessor or his personal representative only such estate of the decedent as remains in specie, and cannot recover the proceeds of such as has been converted into money, unless such proceeds are kept separate and are susceptible of identification. Proctor v. Pigman's Adm'r, 246 Ky. 745 , 56 S.W.2d 342, 1933 Ky. LEXIS 19 ( Ky. 1933 ).

4.— Maladministration or Diversion of Funds.

An administrator de bonis non may sue his predecessor, the sureties on his bond and his personal representatives to recover damages arising out of maladministration or diversion of the funds of the estate, but he has no power to sue anyone who has wrongfully received property belonging to the estate. Gibbs v. Peoples Nat'l Bank, 278 Ky. 415 , 128 S.W.2d 958, 1939 Ky. LEXIS 457 ( Ky. 1939 ).

5.— Opposition to Appointment.

Where a testator’s will left all of his property to his wife to use, sell, or transfer during her life and at her death any remaining property was to go to his children in equal shares and named his wife as executrix and she qualified, administered the estate, and filed her final report, which was approved, the executors of the wife’s estate could not enjoin the enforcement of an order appointing administrators de bonis non of the testator’s estate after his wife’s death, because the wife’s administrators had no interest in the testator’s estate and, if they had, the proper method of opposing the appointment was by appeal to the circuit court. Williams v. Ratcliffe, 402 S.W.2d 432, 1966 Ky. LEXIS 365 ( Ky. 1966 ).

Cited:

Rogers’ Ex’rs v. Cherry, 283 S.W.2d 369, 1955 Ky. LEXIS 304 ( Ky. 1955 ).

395.070. Executor of executor cannot administer estate of first testator.

The executor of an executor shall have no authority, as such, to administer the estate of the first testator, but on the death of the sole or surviving executor of any last will, administration with the will annexed of the estate of the first testator may be granted, if the estate has not already been administered, to such person as would have been entitled to administration if the testator had died intestate.

History. 3890.

NOTES TO DECISIONS

1.Opposition to Appointment.

Where a testator’s will left all of his property to his wife to use, sell, or transfer during her life and at her death any remaining property was to go to his children in equal shares and named his wife as executrix and she qualified, administered the estate, and filed her final report, which was approved, the executors of the wife’s estate could not enjoin the enforcement of an order appointing administrators de bonis non of the testator’s estate after his wife’s death, because the wife’s administrators had no interest in the testator’s estate and, if they had, the proper method of opposing the appointment was by appeal to the circuit court. Williams v. Ratcliffe, 402 S.W.2d 432, 1966 Ky. LEXIS 365 ( Ky. 1966 ).

Cited:

Bohannon v. Tracy, 295 Ky. 456 , 174 S.W.2d 722, 1943 Ky. LEXIS 265 ( Ky. 1943 ).

395.080. When minor may be executor.

If all the persons nominated as executors are under the age of eighteen (18) at the time of probating the will, or those who are of age fail to qualify, administration with the will annexed may be granted during such minority. But if a testator, by his will, so directs, then such infant executor may qualify and give bond as an adult.

History. 3893: amend. Acts 1968, ch. 100, § 11.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context Parent and Child, § 256.00.

395.090. Married woman may be representative or other fiduciary. [Repealed.]

Compiler’s Notes.

This section (3845) was repealed by Acts 1966, ch. 255, § 283.

395.100. Appointment of debtor does not extinguish debt.

The appointment of a debtor executor does not extinguish the debt unless the will so directs.

History. 3889.

395.105. Fiduciary must have letters of appointment — General duties — When appointment effective.

Every fiduciary, before entering upon the execution of the trust, shall receive letters of appointment from the District Court having jurisdiction as now fixed by law. The duties of a fiduciary shall be such as are required by law, and such additional duties not inconsistent therewith as the court may order. The appointment shall be effective with the signing of an order by the judge.

History. Enact. Acts 1942, ch. 167, § 3; 1970, ch. 257, § 1; 1976 (Ex. Sess.), ch. 14, § 384, effective January 2, 1978.

NOTES TO DECISIONS

1.Failure to Qualify.

Where appellant was named by testatrix’s will to be trustee but he never qualified, Circuit Court judge did not have authority to appoint another trustee, for Circuit Court has no authority to initially appoint a trustee, such authority being vested exclusively in the county (now District) Court and county court should have initially appointed appellant trustee or at least issued a letter of appointment since he was appointed by testatrix; thus, order of prohibition against enforcement of order of Circuit Judge was granted. Riedinger v. Murphy, 337 S.W.2d 22, 1960 Ky. LEXIS 356 ( Ky. 1960 ).

2.District Court Jurisdiction.

The county (now District) Court has exclusive jurisdiction for the appointment and removal of personal representatives and their judgments are not subject to collateral attack. Riedinger v. Murphy, 337 S.W.2d 22, 1960 Ky. LEXIS 356 ( Ky. 1960 ).

3.Circuit Court Jurisdiction.

A Circuit Court is without authority to appoint initially a trustee of a testamentary trust even though an appeal is pending in that court from probate of the will, but any party aggrieved by the judgment of a county (now District) Court in such an instance has the right of appeal to the Circuit Court for review. Riedinger v. Murphy, 337 S.W.2d 22, 1960 Ky. LEXIS 356 ( Ky. 1960 ).

4.Effectiveness.

When an injured party’s widow sought to be substituted in her husband’s claim, she did so within the statutory time frame when she sought substitution within one year of his death, after an order appointing her as his executrix was signed, but before the clerk entered it, because the order was effective as soon as it was signed, under KRS 395.105 , and CR 1, providing that a statute’s procedural requirements took precedence over a conflicting rule. Batts v. Ill. Cent. R.R., 217 S.W.3d 881, 2007 Ky. App. LEXIS 65 (Ky. Ct. App. 2007).

Because there was no evidence that the administrator had any knowledge of the will and the record was void of any facts that would have led the administrator to expect that the deceased had a will, the administrator’s appointment was effective with the signing of an order by the district judge under KRS 395.105 ; his administration would not cease until the putative will was produced and proved pursuant to KRS 395.040(4), which had not yet occurred. Bennett v. Nicholas, 250 S.W.3d 673, 2007 Ky. App. LEXIS 330 (Ky. Ct. App. 2007).

Cited:

Maynard v. Chrisman, 301 Ky. 631 , 192 S.W.2d 818, 1946 Ky. LEXIS 540 ( Ky. 1946 ); Whelan v. Payne, 343 S.W.2d 383, 1960 Ky. LEXIS 108 ( Ky. 1960 ); McCaslin v. Hamilton, 726 S.W.2d 713, 1987 Ky. App. LEXIS 461 (Ky. Ct. App. 1987).

Opinions of Attorney General.

Every fiduciary, including testamentary trustees, must, before entering upon the execution of the trust, receive formal letters of appointment from the District Court of jurisdiction, as required by this section. OAG 78-540 .

395.110. Copy of order effectual as probate or letters.

A copy of the order by which a certificate is granted to any personal representative obtaining probate or letters of administration shall be as effectual as the probate or letters made out in due form. The clerk of the court making such an order shall, when required by any personal representative, make out such letters and probate in due form, and certify them, under the seal of his court.

History. 3842.

Research References and Practice Aids

Cross-References.

Order to be replaced in record when original lost, KRS 422.230 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Executors and Administrators, § 234.00.

395.120. Oaths of representatives.

  1. Each executor, administrator and curator shall take an oath to faithfully perform the duties of his office to the best of his judgment.
  2. Each administrator shall also take an oath that his intestate, so far as he knows or believes, died without leaving a will.

History. 3841.

Research References and Practice Aids

Cross-References.

Text of oath to be taken by personal representative, KRS 62.030 .

395.130. Bond, when required — Cost of corporate surety paid from estate.

  1. Every fiduciary, except as provided in KRS 286.3-220 and 386B.7-020 , shall provide surety on his bond unless, on the petition of any interested party, the court upon being satisfied that all interests are adequately protected excuses the requirement of a surety, or unless, by the terms of the will or trust, surety is not required. Subsequent to the qualification of a fiduciary and on motion of any interested party the court may reduce the amount of the bond, release the surety, or permit the substitution of another bond with the same or different sureties. If an executor does not give bond when required to do so, he shall not be permitted to qualify, and, if he has already qualified, he shall be removed.
  2. Whenever any personal representative, guardian, conservator, or fiduciary who is required by law to execute a bond for the faithful discharge of his duties or fulfillment of his trust, procures as surety on his bond an incorporated surety company authorized to do business in this state, the necessary and reasonable cost incident to the bond shall be a lawful charge against the estate in the hands of the fiduciary, as other expenses of administration, and in his settlement the fiduciary shall be entitled to credit by the amount actually paid by him for that purpose, subject to the approval of the court which has approved the bond.

History. 3837, 3837a, 3887: amend. Acts 1970, ch. 257, § 3; 1982, ch. 141, § 107, effective July 1, 1982; 2014, ch. 25, § 112, effective July 15, 2014.

Compiler’s Notes.

This section was amended by § 120 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

Legislative Research Commission Note.

(7/12/2006). 2006 Ky. Acts ch. 247 instructs the Reviser of Statutes to adjust KRS references throughout the statutes to conform with the 2006 renumbering of the Financial Services Code, KRS Chapter 286. Such an adjustment has been made in this statute.

NOTES TO DECISIONS

1.Bond.

The county (now District) Court is clothed with discretionary powers to require bond, when the will directs that the executor shall be permitted to qualify without bond. Gibson's Ex'r v. Fishback, 60 S.W. 396, 22 Ky. L. Rptr. 1267 (1901). See McCann v. McCann's Ex'x, 93 S.W. 1045, 29 Ky. L. Rptr. 537 (1906); Hopkins v. Howard's Ex'x, 266 Ky. 685 , 99 S.W.2d 810, 1936 Ky. LEXIS 739 ( Ky. 1936 ).

In an estate opened prior to enactment of subsection (2) of this section, the premiums paid by an executor were a proper consideration in fixing the amount of his fee. Greenway v. Irvine's Ex'r, 234 Ky. 597 , 28 S.W.2d 760, 1929 Ky. LEXIS 457 ( Ky. 1929 ).

Under this section the court is authorized to and should require bond when it is made to appear necessary to protect the estate or the rights of any party in interest. Hopkins v. Howard's Ex'x, 266 Ky. 685 , 99 S.W.2d 810, 1936 Ky. LEXIS 739 ( Ky. 1936 ), (decision prior to 1970 amendment).

2.— Failure to Give.

This section provides for the removal by the court of executors who fail to give bond which the court finds should be given as protection. Stafford's Ex'rs v. Spradlin, 301 Ky. 841 , 193 S.W.2d 474, 1946 Ky. LEXIS 593 ( Ky. 1946 ).

3.Sureties.
4.— Direction of Testator.

Where the will directs that certain persons are to be accepted on the bond and, if they are insufficient, then and in that event the executor is to be entitled to qualify without bond to that extent, this should be done unless someone interested moves for additional bond and shows reason therefor. Home Mission Board v. Wylie's Ex'r, 230 Ky. 284 , 18 S.W.2d 1106, 1929 Ky. LEXIS 67 ( Ky. 1929 ).

5.— Liability.

The surety on the bond of an executor is liable only for losses of property that comes into the hands of the executor as executor, and not property that comes to him in his individual capacity under the will. United States Fidelity & Guaranty Co. v. Joseph W. Russell & Co., 141 Ky. 601 , 133 S.W. 572, 1911 Ky. LEXIS 64 ( Ky. 1911 ). See Costigan v. Kraus, 158 Ky. 818 , 166 S.W. 755, 1914 Ky. LEXIS 725 ( Ky. 1914 ).

6.— Administrator Debtor to Estate.

Where the debtor qualifies as personal representative and is insolvent throughout the administration of the decedent’s estate, the surety will not be charged with his personal indebtedness to the estate which he administers. Costigan v. Kraus, 158 Ky. 818 , 166 S.W. 755, 1914 Ky. LEXIS 725 ( Ky. 1914 ).

A surety on the bond of an insolvent personal representative is not liable for the individual indebtedness of the personal representative to the decedent’s estate. Foster v. Hill, 282 Ky. 327 , 138 S.W.2d 495, 1940 Ky. LEXIS 172 ( Ky. 1940 ).

Where administrator is debtor to estate, sureties on his bond are not liable for his failure to pay his or to collect another’s debt, where the administrator throughout the administratorship, and debtor, were insolvent or unable to pay, or where failure to collect of third party is not due to lack of diligence. Cawood v. Cawood's Adm'x, 285 Ky. 201 , 147 S.W.2d 88, 1940 Ky. LEXIS 605 ( Ky. 1940 ).

7.— Notice of Defaults or Mismanagement.

Heirs are under no duty to give notice to sureties on administrator’s bond of defaults or mismanagement by administrator known to heirs. Kaufman v. Kaufman's Adm'r, 292 Ky. 351 , 166 S.W.2d 860, 1942 Ky. LEXIS 102 ( Ky. 1942 ).

Cited:

Harrell v. Westover, 283 S.W.2d 197, 1955 Ky. LEXIS 292 ( Ky. 1955 ).

Opinions of Attorney General.

A public administrator must execute a bond for each separate estate for which he is appointed. OAG 66-242 .

Research References and Practice Aids

Cross-References.

Bonds of officers and fiduciaries, KRS Ch. 62.

Contribution allowed to persons jointly liable for act or omission in trust capacity, KRS 412.050 .

Surety and principal may agree as to deposit of assets for which they are liable, KRS 386.160 .

Surety on executor’s or administrator’s bond discharged from liability within five years, KRS 413.230 .

Kentucky Bench & Bar.

Ratliff, Kentucky Probate — A Simple Overview, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 16.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Application for Appointment of Fiduciary for Disabled Persons (AOC 745), Form 260.04.

Caldwell’s Kentucky Form Book, 5th Ed., Fiduciary Bond (AOC 825), Form 233.04.

Caldwell’s Kentucky Form Book, 5th Ed., Motion by Guardian for Power to Sell Real Estate, Form 317.02.

Caldwell’s Kentucky Form Book, 5th Ed., Order Showing Objection to Executor Qualifying Without Bond, Form 234.08.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Executors and Administrators, § 234.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Fiducial Sales, § 317.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Guardians and Conservators (Mentally Disabled Persons), § 260.00.

395.140. Bond — Persons not to be surety on — Recording of.

  1. The District Court shall not accept as surety, in any bond of a personal representative, any master or other commissioner whose duty is to settle the accounts of personal representatives or any judge or clerk of a District Court or practicing attorney of that court.
  2. The bond shall be subscribed by the principal and sureties, approved by the court, attested by the clerk of the court and carefully kept by the clerk in his office in a book to be provided for that purpose.

History. 3838, 3867: amend. Acts 1976 (Ex. Sess.), ch. 14, § 385, effective January 2, 1978.

395.145. Attorney for fiduciary.

At the time of appointment of a fiduciary, he may designate an attorney who will represent him in matters relating to the trust, and when so designated notices to such fiduciary shall also be sent by the court to such attorney.

History. Enact. Acts 1942, ch. 167, § 4; 1966, ch. 255, § 268.

NOTES TO DECISIONS

1.Construction.

Insofar as this section provides that no fiduciary shall be required to be represented by an attorney, it is ineffectual and superseded by the Court of Appeals rules. Frazee v. Citizens Fidelity Bank & Trust Co., 393 S.W.2d 778, 1964 Ky. LEXIS 547 (Ky. Ct. App. 1964), (decision prior to 1966 amendment).

2.Embezzlement by Attorney.

Administrator who turned over substantially all duties of administration to attorney and permitted attorney to handle all funds of estate, and made no effort for a period of five years to require an accounting of the funds, was liable for loss resulting from embezzlement by attorney. Kaufman v. Kaufman's Adm'r, 292 Ky. 351 , 166 S.W.2d 860, 1942 Ky. LEXIS 102 ( Ky. 1942 ).

395.150. Compensation of representatives.

  1. The compensation of an executor, administrator or curator, for services as such, shall not exceed five percent (5%) of the value of the personal estate of the decedent, plus five percent (5%) of the income collected by the executor, administrator or curator for the estate.
  2. Upon proof submitted showing that an executor, administrator or curator has performed additional services in the administration of the decedent’s estate, the court may allow to the executor, administrator or curator such additional compensation as would be fair and reasonable for the additional services rendered, if the additional services were:
    1. Unusual or extraordinary and not normally incident to the administration of a decedent’s estate; or
    2. Performed in connection with real estate or with estate and inheritance taxes claimed against property that is not a part of the decedent’s estate but is included in the decedent’s estate for the purpose of asserting such taxes.

History. 3883.

NOTES TO DECISIONS

1.Construction.

The statute establishes a ceiling for compensation to the administrator, not a base. Clay v. Eager, 444 S.W.2d 124, 1969 Ky. LEXIS 202 ( Ky. 1969 ), overruled in part, Ky. Bar Ass'n v. Calvert, 607 S.W.3d 700, 2020 Ky. LEXIS 285 ( Ky. 2020 ).

2.Compensation.

The administrator is entitled to a commission for his services, an extra allowance if the facts justify it, and reasonable attorney fees when necessary in carrying out the trust. Clark v. Young, 74 S.W. 245, 24 Ky. L. Rptr. 2395 (1903).

Where an estate was in excess of $400,000 and executor served for nine years and was involved in extensive litigation, $10,000 as executor’s fees and $20,000 as attorney fees were reasonable. Greenway v. Irvine's Ex'r, 234 Ky. 597 , 28 S.W.2d 760, 1929 Ky. LEXIS 457 ( Ky. 1929 ).

Although an executor’s fee of five percent of the value of the estate appeared most generous, the Court of Appeals did not reverse it, because the executor was charged with interest and the trial court was in better position to determine a proper fee. Peoples State Bank & Trust Co. v. Hodgkin, 287 S.W.2d 425, 1956 Ky. LEXIS 458 ( Ky. 1956 ).

Where an executor had failed to settle an estate after nine years but had exerted some efforts in behalf of the estate, a fee of three percent for his services rendered as executor was a fair allowance. Clay v. Eager, 444 S.W.2d 124, 1969 Ky. LEXIS 202 ( Ky. 1969 ), overruled in part, Ky. Bar Ass'n v. Calvert, 607 S.W.3d 700, 2020 Ky. LEXIS 285 ( Ky. 2020 ).

Bank, as executor of an estate, was entitled to pay reasonable compensation to an advisory committee for its advice and administration of the estate pursuant to KRS 395.150 ; during their service, the advisors were entangled in complex litigation and burdened with estate assets on the verge of financial collapse. Joan Kincaid Advisory Comm. v. Kincaid, 2011 Ky. App. LEXIS 145 (Ky. Ct. App. Sept. 2, 2011, sub. op., 2011 Ky. App. Unpub. LEXIS 939 (Ky. Ct. App. Sept. 2, 2011).

3.— Limited.

Where the property is distributed in kind and the personal representative put to little trouble and expense, he should not be allowed the maximum five percent of the value of the property but a lesser sum. Stratton v. Wilson, 170 Ky. 61 , 185 S.W. 522, 1916 Ky. LEXIS 64 ( Ky. 1916 ), overruled, Gentry v. Gentry, 798 S.W.2d 928, 1990 Ky. LEXIS 117 ( Ky. 1990 ).

The executor is entitled to a maximum of five percent, and his commission may be fixed at less than that amount where he merely preserved the estate. Douglas' Adm'r v. Douglas' Ex'r, 243 Ky. 321 , 48 S.W.2d 11, 1932 Ky. LEXIS 88 ( Ky. 1932 ).

A personal representative is not entitled to a full commission on the property turned over to his successor, in the absence of unusual or extraordinary services. Baker's Heirs v. Dixon Bank & Trust Co., 292 Ky. 701 , 168 S.W.2d 24, 1943 Ky. LEXIS 741 ( Ky. 1943 ).

The maximum fee allowed by this section for ordinary services is five percent of the receipts and disbursements. Panke v. Louisville Trust Co., 303 Ky. 579 , 198 S.W.2d 313, 1946 Ky. LEXIS 905 ( Ky. 1946 ).

This section does not allow the executor a fee of five percent of the value of the estate as a matter of course, but rather limits such fees to a maximum of five percent. Peoples State Bank & Trust Co. v. Hodgkin, 287 S.W.2d 425, 1956 Ky. LEXIS 458 ( Ky. 1956 ).

Five percent fee is a maximum for ordinary services, and a smaller allowance may be made where administrator merely preserves estate or where the estate is or could have been distributed in kind. Skinner v. Morrow, 318 S.W.2d 419, 1958 Ky. LEXIS 136 ( Ky. 1958 ).

Attorney was suspended for 91 days, with 61 days probated, where she violated SCR 3.130-3.3(a)(2) by failing to list $170,000 in filings submitted to a district court in an estate case and only claimed $5,000 in legal fees; the total amount of fees collected was far beyond the 5% ceiling in KRS 395.150(1). The concealment of the legal fees also violated SCR 3.130-8.3(c). Ky. Bar Ass'n v. Fernandez, 397 S.W.3d 383, 2013 Ky. LEXIS 106 ( Ky. 2013 ).

Attorney was suspended for 91 days, with 61 days probated, where she violated SCR 3.130-1.5(a) by collecting excessive fees from an estate, in violation of KRS 396.150(1); the attorney collected the fees and expenses associated with the representation of other estates. The will contained no provision for these fees, and the attorney did not seek court approval for the payment of additional fees. Ky. Bar Ass'n v. Fernandez, 397 S.W.3d 383, 2013 Ky. LEXIS 106 ( Ky. 2013 ).

4.— Money Received and Distributed.

Where the executor sold land at auction and the purchasers were those entitled to distribution under the will and they paid for the same by deductions of shares allowed them under the will, the executor was not entitled to a commission upon the sale price as he never received this money. Anderson's Ex'r v. Prewitt, 114 S.W. 275 ( Ky. 1908 ).

A personal representative is entitled to a commission of not exceeding five percent for all money received and distributed by him, but not on all money received and not distributed. Baker's Heirs v. Dixon Bank & Trust Co., 292 Ky. 701 , 168 S.W.2d 24, 1943 Ky. LEXIS 741 ( Ky. 1943 ).

5.— Interest.

Judgment allowing recovery by decedent’s widow and heirs for amount retained by trust company in excess of its maximum statutory compensation as administrator was erroneous in abating interest for period during which widow and heirs failed to take any step in a prosecution of the action; the rule of laches was inapplicable, as claim was based upon a statute and interest thereon followed as a matter of law. Panke v. Louisville Trust Co., 303 Ky. 579 , 198 S.W.2d 313, 1946 Ky. LEXIS 905 ( Ky. 1946 ).

6.— Portion Coming to Representative.

The personal representative is entitled to a commission on the portion coming to him from the estate. Russell v. Hogan, 282 Ky. 764 , 140 S.W.2d 615, 1940 Ky. LEXIS 263 ( Ky. 1940 ).

7.— — Property Received as Legatee.

Where the testator devised a promissory note to one of his executors and the residuary estate to the other executor, commissions should not be allowed upon these items because they came into the hands of the respective executors as legatees under the will. Garr v. Roy, 50 S.W. 25, 20 Ky. L. Rptr. 1697 , 1899 Ky. LEXIS 639 (Ky. Ct. App. 1899).

An executor who is also a legatee in the will is entitled to a commission on the amount he collects and pays to himself as such legatee. Taylor v. Taylor, 223 Ky. 799 , 4 S.W.2d 752, 1928 Ky. LEXIS 444 ( Ky. 1928 ).

8.— — Debt Owed by Estate to Administrator.

The personal representative is entitled to a commission on money collected on behalf of the estate and paid to himself in satisfaction of a debt owing to the personal representative by the estate of the deceased. Avey v. Stearman, 145 Ky. 574 , 140 S.W. 1055, 1911 Ky. LEXIS 919 ( Ky. 1911 ).

9.— Discretionary Powers of Court.

The court, in its discretion, may allow less than the five percent commission. Central Trust Co. v. Johnson, 74 S.W. 663, 25 Ky. L. Rptr. 55 , 1903 Ky. LEXIS 364 (Ky. Ct. App. 1903). See Morton's Ex'rs v. Morton's Ex'r, 112 Ky. 706 , 66 S.W. 641, 23 Ky. L. Rptr. 2079 , 1902 Ky. LEXIS 213 ( Ky. 1902 ); Armstrong v. McFarland's Adm'r, 187 Ky. 185 , 218 S.W. 1012, 1920 Ky. LEXIS 96 ( Ky. 1920 ); Hamilton v. Nunn, 247 Ky. 715 , 57 S.W.2d 655, 1933 Ky. LEXIS 442 ( Ky. 1933 ).

10.— — Abuse.

If the court erroneously allows a fee of less than five percent, it will be reversed as an abuse of discretion. Carpenter's Adm'r v. Demoisey, 237 Ky. 628 , 36 S.W.2d 27, 1931 Ky. LEXIS 659 ( Ky. 1931 ).

11.— Expenses, Loss of Time.

The personal representative cannot claim expenses or loss of time in addition to the five percent commission. The commission is to cover these items. Miller v. Keown, 176 Ky. 117 , 195 S.W. 430, 1917 Ky. LEXIS 28 ( Ky. 1917 ), overruled, Lockhard v. Brown, 536 S.W.2d 318, 1976 Ky. LEXIS 72 ( Ky. 1976 ), overruled in part, Lockhard v. Brown, 536 S.W.2d 318, 1976 Ky. LEXIS 72 ( Ky. 1976 ), overruled on other grounds, Lockhard v. Brown, 536 S.W.2d 318, 1976 Ky. LEXIS 72 (Ky. 1976). See Maynard v. Maynard's Adm'r, 251 Ky. 246 , 64 S.W.2d 567, 1933 Ky. LEXIS 834 ( Ky. 1933 ).

12.— Distribution in Kind.

The personal representative is entitled to a reasonable allowance for the distribution of a part of the estate in kind, and is not limited to five percent of the cash collected and distributed. Reed v. Reed, 66 S.W. 819, 23 Ky. L. Rptr. 2186 , 1902 Ky. LEXIS 526 (Ky. Ct. App. 1902).

A commission of five percent should not be allowed upon the personal property that is distributed in kind. Neither should such a commission be allowed upon the proceeds of personal property where the property itself could have been distributed. Maynard v. Maynard's Adm'r, 251 Ky. 246 , 64 S.W.2d 567, 1933 Ky. LEXIS 834 ( Ky. 1933 ).

13.— Efficient Management of Large Estate.

Where a trustee efficiently managed a large estate consisting of real and personal property, it was held that he was entitled to five percent commission and decree of the lower court allowing a smaller commission was reversed. Wilder v. Hast, 96 S.W. 1106, 29 Ky. L. Rptr. 1181 (1906).

14.— Reduced.
15.— — Neglect of Duty.

One may forfeit the right to commissions by laches in making his reports and demanding commissions. Anspacher v. Utterback's Adm'r, 252 Ky. 666 , 68 S.W.2d 15, 1934 Ky. LEXIS 843 ( Ky. 1934 ).

If the administrator delays or neglects to make his settlements or the payment or distribution of funds in his hands when the same has become payable, or otherwise neglects his duty, the court may allow a less compensation than should or would have been allowed had he settled his accounts promptly. Greenway's Adm'r v. Greenway, 266 Ky. 114 , 98 S.W.2d 283, 1936 Ky. LEXIS 608 ( Ky. 1936 ).

16.— — No Services for Estate.

Party who served as administrator was entitled to no commissions and to no allowance for his attorney, where he had no right to the appointment, and would not have been appointed if he had informed judge of all facts, and he performed no services for the estate, but all his efforts and those of his attorney were for his individual benefit. Newton v. Hicks' Adm'r, 282 Ky. 226 , 138 S.W.2d 329, 1940 Ky. LEXIS 145 ( Ky. 1940 ).

17.— — Nonactive Executor.

Where there are two executors and all the work was done by one of them, the fees should be equally divided between them if the nonactive executor held himself in readiness to perform if called upon to do so. Garr v. Roy, 50 S.W. 25, 20 Ky. L. Rptr. 1697 , 1899 Ky. LEXIS 639 (Ky. Ct. App. 1899). See Taylor v. Taylor, 223 Ky. 799 , 4 S.W.2d 752, 1928 Ky. LEXIS 444 ( Ky. 1928 ).

18.— — Excessive.

Where the administrator received and distributed moneys of an estate of $500, it was error to allow him a fee of $300 and $210 for his attorney. The sums were reduced to $100 and $50.00, respectively. Nickell v. Nickell, 118 S.W. 966 ( Ky. 1909 ).

Where estate consisted mainly of securities, some of which were to be distributed in kind to the heirs, and no extraordinary trouble or effort was involved in handling of estate and, even though estate was involved in considerable litigation, it did not involve extra work on part of administrator so much as on part of administrator’s attorney, a fee of five percent was adequate and ample; thus, award of administration fee in excess of five percent was erroneous to the extent that it allowed a fee in excess of five percent. Skinner v. Morrow, 318 S.W.2d 419, 1958 Ky. LEXIS 136 ( Ky. 1958 ).

Because collection of executor’s fee that was over four times the statutory maximum was clearly unreasonable and attorney neither asked the probate court to allow additional compensation nor presented evidence justifying the fee, he was in violation of rules against collection of illegal or excessive fees; this and other violations of professional and fiduciary duties resulted in suspension from the practice of law for three years. Kentucky Bar Ass'n v. Profumo, 931 S.W.2d 149, 1996 Ky. LEXIS 93 ( Ky. 1996 ), overruled in part, Ky. Bar Ass'n v. Calvert, 607 S.W.3d 700, 2020 Ky. LEXIS 285 ( Ky. 2020 ).

Because there was no evidence that there was anything unusual about the property sales undertaken by an attorney-executor, and the record showed that much of the actual work was done by an auctioneer, realtors and other attorneys, the attorney-executor offered no proof she was entitled to the maximum rate of five percent (5%) of the personal estate and income, and a fee of $175,000.00 was excessive. Hale v. Moore, 289 S.W.3d 567, 2008 Ky. App. LEXIS 5 (Ky. Ct. App. 2008).

19.— — Deduction on Each Transaction.

Where trustee had deducted a five percent commission for each disbursement made and had made an annual charge for making loans and supervising real estate, his commission on the sum turned over to his successor, at time of final settlement, should not exceed one percent, being a nominal charge for collecting and preserving the sum so turned over. Baker's Heirs v. Dixon Bank & Trust Co., 292 Ky. 701 , 168 S.W.2d 24, 1943 Ky. LEXIS 741 ( Ky. 1943 ).

20.— Exempt Property.

The personal representative is entitled to a commission on property which is exempt to the widow and infant children. Wheeldon Adm'r v. Barrett's Guardian, 253 Ky. 737 , 70 S.W.2d 11, 1934 Ky. LEXIS 721 ( Ky. 1934 ).

21.Additional Services.

In order to entitle a personal representative to a greater commission than five percent, there must be a showing of additional services. Shutt's Adm'r v. Shutt's Adm'r, 192 Ky. 98 , 232 S.W. 405, 1921 Ky. LEXIS 29 ( Ky. 1921 ).

22.Unusual or Extraordinary Services.

Where special services beneficial to the estate are rendered by the personal representative, he may be entitled to an extra allowance therefor. Glover v. Check, 71 S.W. 438, 24 Ky. L. Rptr. 1281 , modified, 72 S.W. 302, 24 Ky. L. Rptr. 1783 , 1903 Ky. LEXIS 453 (Ky. Ct. App. 1903).

23.Attorney’s Fees.

Reasonable attorney fees are allowed to executor where necessary to employ counsel to administer estate. Taylor v. Minor, 90 Ky. 544 , 14 S.W. 544, 12 Ky. L. Rptr. 479 , 1890 Ky. LEXIS 125 ( Ky. 1890 ) (decided under prior law).

Where it is necessary for an administrator to hire an attorney, he should be allowed reasonable compensation for his services. Harding's Adm'r v. Harding, 132 Ky. 1 33 , 116 S.W. 305, 1909 Ky. LEXIS 98 ( Ky. 1 909 ). See Evans' Adm'r v. McVey, 172 Ky. 1, 188 S.W. 1075, 1916 Ky. LEXIS 158 ( Ky. 1916 ); Greenway v. Irvine's Ex'r, 234 Ky. 597 , 28 S.W.2d 760, 1929 Ky. LEXIS 457 ( Ky. 1929 ).

Where several attorneys are employed by the executors, their work must be measured as if the work was performed by one attorney in fixing their fees. Miller v. Keown, 176 Ky. 117 , 195 S.W. 430, 1917 Ky. LEXIS 28 ( Ky. 1917 ), overruled, Lockhard v. Brown, 536 S.W.2d 318, 1976 Ky. LEXIS 72 ( Ky. 1976 ), overruled in part, Lockhard v. Brown, 536 S.W.2d 318, 1976 Ky. LEXIS 72 ( Ky. 1976 ), overruled on other grounds, Lockhard v. Brown, 536 S.W.2d 318, 1976 Ky. LEXIS 72 (Ky. 1976). See Hamilton v. Nunn, 247 Ky. 715 , 57 S.W.2d 655, 1933 Ky. LEXIS 442 ( Ky. 1933 ).

Court should allow attorneys reasonable compensation for services in connection with settlement of estate. Morgan v. Meacham, 279 Ky. 526 , 130 S.W.2d 992, 1938 Ky. LEXIS 67 ( Ky. 1938 ).

Where testatrix designated attorney to act both as executor and attorney for her estate, attorney was entitled to compensation for legal services rendered in addition to his commission as executor. Morgan v. Meacham, 279 Ky. 526 , 130 S.W.2d 992, 1938 Ky. LEXIS 67 ( Ky. 1938 ).

If the attorney chosen by the executor is unwilling to act for the compensation named in the will, he should apply to the court for an increase before accepting employment. Robinson's Ex'rs v. Robinson, 297 Ky. 229 , 179 S.W.2d 886, 1944 Ky. LEXIS 713 ( Ky. 1944 ).

The executor does not have the authority to fix the amount due the attorney he employs. The attorney’s fee is fixed by the court in making a reasonable allowance to the executor to cover the fee of the attorney. Robinson's Ex'rs v. Robinson, 297 Ky. 229 , 179 S.W.2d 886, 1944 Ky. LEXIS 713 ( Ky. 1944 ).

Attorney violated SCR 3.130-1.5(a) by collecting amounts from the estate as both lawyer and executor without seeking the prior approval from the court, and by the collection of fees more than twice the maximum authorized by KRS 395.150(1) as compensation for an executor based upon an estate value of $469,277.71, including his claims for attorney services not authorized in the will or by the court. Ky. Bar Ass'n v. Jacobs, 387 S.W.3d 332, 2012 Ky. LEXIS 193 ( Ky. 2012 ).

24.Agreement to Serve Without Charge.

Where the personal representative agrees to administer the estate without charge, he should not be allowed any fees. Bate v. Bate, 74 Ky. 639 , 1876 Ky. LEXIS 14 ( Ky. 1876 ) (decided under prior law).

Where it appeared that the administrator had agreed to serve without compensation, he should not be allowed any fees beyond his actual expenses. Doty v. Cox, 22 S.W. 322, 15 Ky. L. Rptr. 68 (1893) (decided under prior law).

25.Successor Administrators.

Where the testator fixes the sum to be paid to his executor in his will and the executor qualifies and that sum is paid to him, and then he dies and a successor executor is appointed, the successor executor is entitled to compensation for his services. Young v. Smith, 72 Ky. 421 , 1872 Ky. LEXIS 71 ( Ky. 1872 ) (decided under prior law).

Cited:

Bailey’s Adm’r v. Hampton Grocery Co., 189 Ky. 261 , 224 S.W. 1067, 1920 Ky. LEXIS 412 ( Ky. 1920 ); Curtis v. Citizens Bank & Trust Co., 384 S.W.2d 328, 1964 Ky. LEXIS 97 ( Ky. 1964 ).

Research References and Practice Aids

Cross-References.

Commission is deductible for inheritance tax purposes, KRS 140.090 .

Inheritance tax imposed on excess of amount devised or bequeathed to executors over fee allowed them by law, KRS 140.120 .

Kentucky Bench & Bar.

Ratliff, Kentucky Probate — A Simple Overview, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 16.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Executors and Administrators, § 234.00.

395.155. Computation of personal representative’s commission.

For the purpose of computing commissions whenever any portion of the dividends, interests, rents or other amounts payable to an executor, administrator, trustee, guardian, conservator, curator or other personal representative or fiduciary is required by any law of the United States or other governmental unit to be withheld for income tax purposes by the person, corporation, organization or governmental unit paying the same, the amount so withheld shall be deemed to have been collected.

History. Enact. Acts 1962, ch. 149; 1982, ch. 141, § 108, effective July 1, 1982.

Compiler’s Notes.

This section was amended by § 121 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

395.160. Removal of representatives.

  1. If a personal representative moves out of the state and fails to designate a process agent as required by KRS 395.015(1), becomes insane or otherwise incapable to discharge the trust, goes bankrupt or insolvent or is in failing circumstances, the District Court shall remove him, and the other personal representative, if there is another, shall discharge the trust. If he resides in the county of his appointment or in an adjoining county, and is not insane, he shall have ten (10) days’ notice before the order of removal is made. If he is insane, the notice shall be given to his committee, if he has one, and if there is no committee, the court may appoint one.
  2. The district court may remove a personal representative for failing to give additional security when required under KRS 62.060 and appoint another.
  3. The court shall require a personal representative who is removed to settle his accounts, and deliver over the decedent’s estate to the person appointed in his stead.

History. 3839, 3840, 3846: amend. Acts 1974, ch. 299, § 15; 1976 (Ex. Sess.), ch. 14, § 386, effective January 2, 1978.

NOTES TO DECISIONS

1.In General.

The county (now District) Court has jurisdiction to remove the personal representative, for cause, but has no power to set aside the order of qualification of personal representative at a term subsequent to that at which it is made. Taylor v. Tibbatts, 52 Ky. 177 , 1852 Ky. LEXIS 9 ( Ky. 1852 ) (decided under prior law).

The county (now District) Courts are generally vested with a broad discretion in determining whether an executor or administrator shall be removed from office. Unless some good sound reason is shown, the removal should be denied. Trevathan v. Grogan, 210 Ky. 694 , 276 S.W. 556, 1925 Ky. LEXIS 755 ( Ky. 1925 ).

The court may remove an administrator for a cause which would not justify the removal of an executor or refusal to permit executor to qualify. Kuechler v. Rubbathen, 266 Ky. 390 , 99 S.W.2d 193, 1936 Ky. LEXIS 676 ( Ky. 1936 ).

A valid appointment of a personal representative by proper court followed by due qualification of appointee cannot be later ignored in a collateral attack in the same court without direct proceedings to remove the appointee, nor without such proceedings can another fiduciary be appointed as representative of the same estate. Landrum v. Louisville & N. R. Co., 290 Ky. 724 , 162 S.W.2d 543, 1942 Ky. LEXIS 483 ( Ky. 1942 ).

It takes stronger proof of disqualification for the removal of an executor in whom a testator had confidence enough to appoint than it does of an administrator named by the court. Karsner's Ex'r v. Monterey Christian Church, 304 Ky. 269 , 200 S.W.2d 474, 1947 Ky. LEXIS 623 ( Ky. 1947 ).

2.Nonresident.

The failure to give notice to a personal representative, who was admittedly a nonresident, of an action to remove her did not make the removal void because neither she nor the estate was prejudiced since her removal was required by the fact of her nonresidence and she could not have prevented the removal if she had been heard on the request. Harber v. Kentucky Ridge Coal Co., 188 F.2d 62, 1951 U.S. App. LEXIS 3791 (6th Cir. Ky. 1951 ).

A nonresident of the state cannot be appointed administrator of the estate of the decedent situated in Kentucky. Fishel v. Dixon, 212 Ky. 2 , 278 S.W. 545, 1925 Ky. LEXIS 1060 ( Ky. 1925 ).

3.Adverse Interest.

Where the executor refuses to act according to advice of the creditors of the estate, but follows the advice of his counsel with reference to pending litigation and no loss will be suffered by the estate, no bad faith or adverse interest on his part is shown so as to constitute a ground for his removal. Hancock's Adm'r v. Hancock's Ex'r, 257 Ky. 739 , 79 S.W.2d 206, 1935 Ky. LEXIS 95 ( Ky. 1935 ).

A personal representative is incapable of discharging the trust when he is asserting “an adverse, incompatible, and hostile interest in himself to that of the estate.” Price's Adm'r v. Price, 291 Ky. 211 , 163 S.W.2d 463, 1942 Ky. LEXIS 203 ( Ky. 1942 ).

If a personal representative assumes an antagonistic or adverse position towards the trust fund by himself claiming to own part of it — or what it is contended is a part of it — thereby diminishing its supposed corpus, to the detriment of others having an interest therein, he thereby becomes incapable of discharging the trust and he may be removed upon the proof of such facts. Price's Adm'r v. Price, 291 Ky. 211 , 163 S.W.2d 463, 1942 Ky. LEXIS 203 ( Ky. 1942 ).

If a personal representative cannot in good faith and conscience perform his trust in a fair and unbiased manner, he ought to resign and, if he does not, then he should be removed by the court, under the provisions of this section, because he is “incapable to discharge the trust.” Karsner's Ex'r v. Monterey Christian Church, 304 Ky. 269 , 200 S.W.2d 474, 1947 Ky. LEXIS 623 ( Ky. 1947 ).

Where administrator sought to appropriate to himself and wife his deceased mother’s entire estate, through support of wife’s claim for nursing services rendered deceased and his claim of ownership of all personal property by gift, he was subject to removal as being “incapable to discharge the trust,” since he had abandoned primary duty to protect and preserve the estate for the benefit of all the decedent’s heirs. Carpenter v. Planck, 304 Ky. 644 , 201 S.W.2d 908, 1947 Ky. LEXIS 695 ( Ky. 1947 ).

An adverse or antagonistic position regarding an estate which might create an awkward or unsatisfactory situation may justify the removal of an administrator. Howd v. Clay, 312 Ky. 508 , 228 S.W.2d 437, 1950 Ky. LEXIS 695 ( Ky. 1950 ).

Disqualification of an executor by reason of an adverse claim against the estate arises only where the nature of the claim itself is such as to establish that the executor is incapable to discharge the trust with fairness and impartiality. Ewald v. Citizens Fidelity Bank & Trust Co., 305 S.W.2d 533, 1957 Ky. LEXIS 321 ( Ky. 1957 ).

Where executor served as inter vivos trustee for decedent and pressed a claim against the estate for payment of taxes during term of trust, such claim is not so adverse or antagonistic to estate so as to disqualify executor. Ewald v. Citizens Fidelity Bank & Trust Co., 305 S.W.2d 533, 1957 Ky. LEXIS 321 ( Ky. 1957 ).

4.Mismanagement.

This section provides for the removal of a personal representative upon several grounds, one of which is shown to be “incapable of discharging the trust” and embraces mismanagement and waste which will result in substantial loss to the distributee. Stafford's Ex'rs v. Spradlin, 301 Ky. 841 , 193 S.W.2d 474, 1946 Ky. LEXIS 593 ( Ky. 1946 ).

In removing appellant as executor of his father's estate, the district court abused its discretion by anticipating or presuming appellant's dishonesty and unfair dealings before any such bad intention had been clearly established. The complaints and allegations made against appellant did not constitute evidence of his unfitness to discharge the trust which his father bestowed expressly upon him. Wolfe v. Young, 521 S.W.3d 598, 2017 Ky. App. LEXIS 567 (Ky. Ct. App. 2017).

5.Represents Two Estates.

One who has been appointed administrator of two estates, between which there are conflicts and possibility of litigation, should be removed from one of the positions. Warden v. Hoover's Adm'r, 214 Ky. 370 , 283 S.W. 444, 1926 Ky. LEXIS 370 ( Ky. 1926 ).

6.Indebted to Estate.

The fact that the executor named in the will was indebted to the estate was not grounds for his removal, where the indebtedness was amply secured and a bequest to the executor exceeded the amount of the indebtedness. Breitenstein v. Bradas' Ex'r, 290 Ky. 43 , 160 S.W.2d 323, 1942 Ky. LEXIS 341 ( Ky. 1942 ).

Where the executor owed the estate in excess of $250,000, such indebtedness had an enormous potential to affect adversely the interests of the remaining six heirs, and the District Court had the authority to remove the executor for conflict of interest. Morris v. Brien, 712 S.W.2d 347, 1986 Ky. App. LEXIS 1066 (Ky. Ct. App. 1986).

7.Hostility to Distributee.

Mere personal hostility toward a distributee does not necessarily disqualify one to act as personal representative of an estate. Barnett's Adm'r v. Pittman, 282 Ky. 162 , 137 S.W.2d 1098, 1940 Ky. LEXIS 134 ( Ky. 1940 ).

8.Misrepresentation.

Where son of deceased, during deceased’s lifetime, took assignment of certificates of bank deposits from father in order to defeat stepmother’s pending divorce action, and after deceased’s death secured appointment as administrator by misrepresentation, and prevailed upon appraisers to file second inventory omitting certificates of deposit, which had been included in first inventory, he should have been removed upon stepmother’s petition. Price's Adm'r v. Price, 291 Ky. 211 , 163 S.W.2d 463, 1942 Ky. LEXIS 203 ( Ky. 1942 ).

An executor who sought by statements bordering on misrepresentation to have church, which was principal beneficiary under the will, agree to have will set aside for an inadequate sum before church had ascertained the facts, was properly removed at request of church. Karsner's Ex'r v. Monterey Christian Church, 304 Ky. 269 , 200 S.W.2d 474, 1947 Ky. LEXIS 623 ( Ky. 1947 ).

9.Deception.

Where one is appointed administrator of an estate by deception and is using the office to deceive the other heirs, he should be removed. Zinn's Adm'r v. Brown, 225 Ky. 814 , 10 S.W.2d 300, 1928 Ky. LEXIS 884 ( Ky. 1928 ).

Fraud in procuring appointment as an administrator constitutes ground for removal of that administrator. Landrum v. Louisville & N. R. Co., 290 Ky. 724 , 162 S.W.2d 543, 1942 Ky. LEXIS 483 ( Ky. 1942 ).

10.Friction with Heirs.

Mere friction or disagreement between the heirs and the administrator is not sufficient cause for removal. Rieke's Adm'r v. Rieke, 183 Ky. 131 , 208 S.W. 764, 1919 Ky. LEXIS 446 ( Ky. 1919 ).

11.Committee for Incompetent Heir.

There is no fundamental conflict of interests between the office of administrator of an estate and committee for an incompetent heir. Haswell v. Wedding, 277 Ky. 729 , 127 S.W.2d 152, 1939 Ky. LEXIS 717 ( Ky. 1939 ).

12.Denial of Appointment.

The grounds for removal prescribed in this section authorize and require denial of the right to qualify if the grounds exist at the time the appointment is sought. Barnett's Adm'r v. Pittman, 282 Ky. 162 , 137 S.W.2d 1098, 1940 Ky. LEXIS 134 ( Ky. 1940 ).

Where grounds exist, prior to appointment, which would justify removal of an administrator under this section, appointment in the first instance may properly be denied. Mullins v. Mullins, 307 Ky. 748 , 212 S.W.2d 272, 1948 Ky. LEXIS 819 ( Ky. 1948 ).

Where grounds exist which would justify the removal of an administrator under this section, the court may properly deny appointment in the first instance. Howd v. Clay, 312 Ky. 508 , 228 S.W.2d 437, 1950 Ky. LEXIS 695 ( Ky. 1950 ).

13.Former Bankruptcy.

Former bankruptcy or insolvency is not sufficient ground for removing the personal representative. This section does not refer to the past condition of the personal representative, but to the condition as it exists at the time that he is sought to be removed. Gill v. Riley, 90 S.W. 2, 28 Ky. L. Rptr. 639 (1906).

14.Failure to File Claim.

Failure of executor to take steps to cause filing of claim against estate by federal government for back income taxes owed by testator was not grounds for removal of executor. Breitenstein v. Bradas' Ex'r, 290 Ky. 43 , 160 S.W.2d 323, 1942 Ky. LEXIS 341 ( Ky. 1942 ).

15.Misuse of Funds.

Where the executor keeps the funds of the estate out of this state and deposited in such a way that it is a personal deposit according to the law of the state in which they are deposited, and refuses to turn them over to a successor executor pursuant to a court order, he should be removed. Taylor v. Taylor's Ex'r, 271 Ky. 509 , 112 S.W.2d 399, 1937 Ky. LEXIS 253 ( Ky. 1937 ).

16.Hearing.

Where an administratrix was removed without a hearing on the ground that her appointment was procured by fraud and the order for her removal was continued after a hearing on her motion to set aside the original order removing her, the hearing cured the defect arising from the failure of notice and hearing in the original order of removal. Miller v. Taylor, 352 S.W.2d 69, 1961 Ky. LEXIS 190 ( Ky. 1961 ).

17.Appointment of Successor.

Statutes prescribing preferences as to persons to be named administrators are not binding where a vacancy caused by removal of a previous executor or administrator is to be filled. Liberty Bank & Trust Co. v. Kentucky Title Trust Co., 239 Ky. 263 , 39 S.W.2d 258, 1931 Ky. LEXIS 761 ( Ky. 1931 ).

Statutes which forbid appointment of persons antagonistic to the will do not affect the power of the court to fill a vacancy upon removal of an executor. Liberty Bank & Trust Co. v. Kentucky Title Trust Co., 239 Ky. 263 , 39 S.W.2d 258, 1931 Ky. LEXIS 761 ( Ky. 1931 ).

The power to appoint a successor to an executor who was removed is not absolute but should be exercised in accordance with prevailing judicial principles so that a suitable person will be named. Liberty Bank & Trust Co. v. Kentucky Title Trust Co., 239 Ky. 263 , 39 S.W.2d 258, 1931 Ky. LEXIS 761 ( Ky. 1931 ).

18.Adversary Proceedings.

In cases involving the particular causes listed for removal of a personal representative in this section the District Court had original jurisdiction, while in those situations where mismanagement, fraud, deception or other causes which require proceedings adversary in nature, the Circuit Court had jurisdiction pursuant to KRS 395.510 . Lee v. Porter, 598 S.W.2d 465, 1980 Ky. App. LEXIS 311 (Ky. Ct. App. 1980).

19.Harmless Error.

Although a trial court erred when it refused to remove a mother and the mother’s husband as co-administrators of the estate of the mother’s adult child due to their prior false statements regarding the husband’s relation to the child and their adverse legal position to the child’s father, the mother’s dual role did not cause irreparable procedural error before the trial court. Furthermore, remanding the case for the appointment of a new administrator would not have meaningfully changed the result. Simms v. Estate of Blake, 615 S.W.3d 14, 2021 Ky. LEXIS 10 ( Ky. 2021 ).

Cited:

Commonwealth ex rel. Cummins v. Ryan’s Ex’rs, 126 Ky. 649 , 31 Ky. L. Rptr. 1069 , 104 S.W. 727, 1907 Ky. LEXIS 87 ( Ky. 1907 ); Harber v. Kentucky Ridge Coal Co., 85 F. Supp. 233, 1949 U.S. Dist. LEXIS 2428 (E.D. Ky. 1949 ); Cecil v. Farmers Nat’l Bank, 245 S.W.2d 430, 1951 Ky. LEXIS 1255 ( Ky. 1951 ); Cosby v. Hays, 257 S.W.2d 575, 1953 Ky. LEXIS 788 ( Ky. 1953 ).

Opinions of Attorney General.

KRS 395.005 , as changed in 1970, modifies this section and nonresidence is no longer ground for removal when the personal representative is related to the decedent in one of the ways set forth in KRS 395.005 . OAG 73-393 .

The best notice available should be used due to the fact that the personal representative will be deprived of a fee upon removal and if he fails to respond to the court’s order to make an accounting he will be subjected to the penalty provided in KRS 395.990 . OAG 73-393 .

Research References and Practice Aids

Cross-References.

Additional surety may be required of fiduciary, KRS 62.060 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Executors and Administrators, § 234.00.

395.170. Nonresident representatives — Bond — Actions by.

  1. By giving bond, with surety that is resident of the county in which the action is brought, nonresident executors or administrators of persons who were nonresidents at the time of their death may prosecute actions for the recovery of debts due to such decedents.
  2. In such actions the plaintiff’s letters testamentary or letters of administration, granted by a competent tribunal, properly authenticated, shall be filed. No judgment shall be rendered until the plaintiff executes bond to the state, with good surety that is resident of the county, conditioned to pay any debt due by his decedent to any resident of this state to the extent assets come to his hands.
  3. Actions may be brought on the bond required by subsection (2) for the use of any creditor of the decedent for three (3) years after the date of each receipt of assets by the executor or administrator in this state but not after.
  4. If there is an executor or administrator of such a decedent qualified by a court of this state, he alone may sue, but any debtor who pays his debt or part of it to a nonresident personal representative without notice of the resident personal representative shall be discharged to the extent of such payment.

History. 3878 to 3880.

NOTES TO DECISIONS

1.Constitutionality.

Depriving nonresident administrator of right to bring action in Kentucky without first giving bond does not violate federal constitution. Vassill's Adm'r v. Scarsella, 292 Ky. 153 , 166 S.W.2d 64, 1942 Ky. LEXIS 56 ( Ky. 1942 ).

2.Bond.

The bond here referred to is a bond for costs of the contemplated action that is required of a nonresident plaintiff upon motion of the defendant. Swift's Ex'x v. Donahue, 104 Ky. 137 , 46 S.W. 683, 20 Ky. L. Rptr. 446 , 1898 Ky. LEXIS 145 ( Ky. 1898 ). See Thomas v. Green County, 159 F. 339, 1908 U.S. App. LEXIS 4064 (6th Cir. Ky. 1908 ), aff'd, 211 U.S. 603, 29 S. Ct. 211, 53 L. Ed. 346, 1909 U.S. LEXIS 1791 (U.S. 1909).

The bond required by this section has reference to a debt due to the decedent, and not to a debt due to the executor, contracted in the operation of the business of the deceased pursuant to directions in the will of the decedent. Steitler v. Helenbush's Ex'rs, 61 S.W. 701, 23 Ky. L. Rptr. 174 , 1901 Ky. LEXIS 650 (Ky. Ct. App. 1901).

3.— Failure to Execute.

Failure of foreign administrator to execute bond is a bar to his right to maintain an action for conversion. Ballard v. United Distillers Co., 28 F. Supp. 633, 1939 U.S. Dist. LEXIS 2380 (D. Ky. 1939 ).

A failure to comply with the statutory requirement of a foreign executor of giving bond for costs in a foreclosure suit was not such a defect as would render void the judgment entered in the action of foreclosure. Ritchie v. Paine, 431 S.W.2d 498, 1968 Ky. LEXIS 367 ( Ky. 1968 ).

4.Debts.

A tort action is not a “debt” within the meaning of the term as used in this section. Ballard v. United Distillers Co., 28 F. Supp. 633, 1939 U.S. Dist. LEXIS 2380 (D. Ky. 1939 ).

The word “debts” as used in this section does not cover tort actions. Hence, a nonresident administrator cannot sue as such to recover for the wrongful death of his decedent. Louisville & N. R. Co. v. Brantley's Adm'r, 96 Ky. 297 , 28 S.W. 477, 16 Ky. L. Rptr. 691 , 1894 Ky. LEXIS 113 ( Ky. 1894 ). See Brooks v. Southern P. Co., 148 F. 986, 1906 U.S. App. LEXIS 5007 (C.C.D. Ky. 1906 ), aff'd, 207 U.S. 463, 28 S. Ct. 141, 52 L. Ed. 297, 1908 U.S. LEXIS 1412 (U.S. 1908).

5.Nonresident Administrator.
6.— Right to Maintain Suit.

A foreign administrator has no power to sue in the courts of this state, if a personal representative has been appointed in this state. Conner's Adm'x v. Paul, 75 Ky. 144 , 1876 Ky. LEXIS 50 ( Ky. 1876 ) (decided under prior law).

Where nonresident executor sued in this state to enforce a contract of sale of land entered into under provisions of the will, it was held that he could not sue but must take out letters testamentary from the proper court in this state before he could sue to enforce the contract. Marrett v. Babb's Ex'r, 91 Ky. 88 , 15 S.W. 4, 12 Ky. L. Rptr. 652 , 1891 Ky. LEXIS 3 ( Ky. 1891 ) (decided under prior law).

A foreign administrator, in order to sue to recover for the wrongful death of the intestate, should take out letters of administration in this state and in the county in which the injury was inflicted upon the intestate, or where he died. Brown's Adm'r v. Louisville & N. R. Co., 97 Ky. 228 , 30 S.W. 639, 17 Ky. L. Rptr. 145 , 1895 Ky. LEXIS 183 ( Ky. 1895 ).

An executor who has never qualified in Kentucky could not maintain an action in Kentucky to recover assets of a testamentary trust, by intervening petition or otherwise. Scott-Lees Collegiate Institute v. Charles, 283 Ky. 234 , 140 S.W.2d 1060, 1940 Ky. LEXIS 319 ( Ky. 1940 ).

Nonresident administrator of nonresident decedent had no authority to maintain action in Kentucky for wrongful death, at least without complying with this section. Vassill's Adm'r v. Scarsella, 292 Ky. 153 , 166 S.W.2d 64, 1942 Ky. LEXIS 56 ( Ky. 1942 ).

7.— Settlement of Claim Valid.

Where decedent was a resident of Ohio and was killed in Kentucky, and immediately after his death an administrator was appointed by the Ohio court and then one by the Kentucky court and a settlement was made with the Ohio representative for the wrongful death, the settlement was valid. Compton's Adm'r v. Borderland Coal Co., 179 Ky. 695 , 201 S.W. 20, 1918 Ky. LEXIS 270 ( Ky. 1918 ) ( Ky. 1918 ).

8.Ancillary Administrator.

Where an ancillary administrator of a nonresident decedent has qualified in Kentucky, the foreign administrator may not bring a suit in Kentucky, even to collect a debt due the decedent. Gibbs v. Deins, 282 Ky. 625 , 139 S.W.2d 430, 1940 Ky. LEXIS 218 ( Ky. 1940 ).

Where nonresident administrator of nonresident decedent instituted action for wrongful death without complying with this section, attempted substitution of ancillary administrator, subsequently appointed in Kentucky, as plaintiff in the action, was not sufficient to toll statute of limitations which had run before appointment of ancillary administrator. Vassill's Adm'r v. Scarsella, 292 Ky. 153 , 166 S.W.2d 64, 1942 Ky. LEXIS 56 ( Ky. 1942 ).

An ancillary administrator may be appointed and may sue for the wrongful death of a nonresident even though there is no primary administrator in the state of decedent’s residence. Service Lines, Inc. v. Mitchell, 419 S.W.2d 525, 1967 Ky. LEXIS 150 ( Ky. 1967 ).

9.Obligations Created in Another State.

Where the personal representative recovers a judgment in a foreign state and seeks to satisfy it against the property of the defendant in this state, it is not a debt due the decedent, and the executor does not have to comply with law regarding actions by nonresident representative. Wayland v. Porterfield's Ex'r, 58 Ky. 638 , 1859 Ky. LEXIS 31 ( Ky. 1859 ) (decided under prior law).

Opinions of Attorney General.

The statute authorizes a nonresident testamentary trustee for nonresident beneficiaries of a resident testator, and does not authorize a nonresident testamentary trustee for resident beneficiaries. OAG 60-552 .

395.180. Appraisers. [Repealed.]

Compiler’s Notes.

This section (3849, 3850, 3856: amend. Acts 1942, ch. 167, §§ 10, 22) was repealed by Acts 1968, ch. 144, § 2.

395.190. Time for distribution of estate.

A personal representative may distribute the estate of a decedent six (6) months after qualification.

History. 3860: amend. Acts 1942, ch. 167, § 17.

NOTES TO DECISIONS

1.Purpose.

The purpose of this section is to give creditors a reasonable time in which to prove up their claims, and the statute does not require the personal representative to wait a longer period than specified therein, unless he has reason therefor, before he is justified in distributing the estate. Albert Neurath & Son v. Dugan's Adm'r, 250 Ky. 601 , 63 S.W.2d 769, 1933 Ky. LEXIS 740 ( Ky. 1933 ).

The purpose of the statute is to give creditors a reasonable time to prove and file their claims to prevent a hasty distribution of the estate before ascertaining the amount of the indebtedness against the estate. Rabold v. Roberts, 444 S.W.2d 536, 1969 Ky. LEXIS 210 ( Ky. 1969 ).

2.Construction.

KRS 396.140 (repealed) is not an immunization for violations or mistakes under this section but is merely remedial. Rabold v. Roberts, 444 S.W.2d 536, 1969 Ky. LEXIS 210 ( Ky. 1969 ).

KRS 396.140 (repealed) provides a remedy for the personal representative in the event of a mistake made under the provisions of this section. Rabold v. Roberts, 444 S.W.2d 536, 1969 Ky. LEXIS 210 ( Ky. 1969 ).

3.Premature Distribution.

A personal representative who settled the estate before the lapse of time provided for in this section did so at his own risk as regards creditors who had six months within which to prove and present their claims. Coffee v. Owens' Adm'r, 216 Ky. 142 , 287 S.W. 540, 1926 Ky. LEXIS 861 ( Ky. 1926 ).

The trial court did not err in requiring the administrator to return money distributed to herself as a beneficiary and as administrator before the debts of the estate were determined. Rabold v. Roberts, 444 S.W.2d 536, 1969 Ky. LEXIS 210 ( Ky. 1969 ).

Where the administratrix made distributions before the debts of the estate had been determined and after a will appointing an executor had been discovered, the distribution to herself as beneficiary was unlawful. Rabold v. Roberts, 444 S.W.2d 536, 1969 Ky. LEXIS 210 ( Ky. 1969 ).

4.— Interest.

Where executor qualified in December 1951, sold the bulk of the estate property in February 1952, held about $77,000 six months after qualifying although the estate had few debts, and settled the estate on March 3, 1953, the executor was properly charged with interest on $60,000 from July 1952 to March 1953. Peoples State Bank & Trust Co. v. Hodgkin, 287 S.W.2d 425, 1956 Ky. LEXIS 458 ( Ky. 1956 ).

5.— Cause of Action Accrues.

The cause of action accrues to the distributee against the administrator, and upon his bond, at the lapse of the period set out in this section. Farmers' Bank of West Louisville v. American Surety Co., 205 Ky. 177 , 265 S.W. 505, 1924 Ky. LEXIS 66 ( Ky. 1924 ). See Harper v. Lamb, 202 Ky. 771 , 261 S.W. 280, 1924 Ky. LEXIS 816 ( Ky. 1924 ).

Cited:

Baugh’s Adm’x v. Baugh’s Adm’r, 159 Ky. 320 , 167 S.W. 124, 1914 Ky. LEXIS 783 ( Ky. 1914 ); Rose v. Rose, 287 Ky. 224 , 152 S.W.2d 603, 1941 Ky. LEXIS 521 ( Ky. 1941 ); Miller’s Ex’r v. Shannon, 299 S.W.2d 103, 1957 Ky. LEXIS 389 ( Ky. 1957 ); Clay v. Eager, 444 S.W.2d 124, 1969 Ky. LEXIS 202 ( Ky. 1969 ).

Opinions of Attorney General.

A county clerk should state in his notice to creditors to present claims against an estate that the claims must be filed with the personal representative within six months from the date of qualification of the personal representative. OAG 76-215 .

Research References and Practice Aids

Cross-References.

Personal representative may recover amount overpaid to creditor, distributee or devisee, KRS 396.165 .

Share of $10,000 or less due person under disability may be paid to person having custody of him, KRS 387.280 .

Widow may withdraw $1,000 from bank before appointment of administrator, KRS 391.030 .

395.195. Transactions authorized for personal representative — Exceptions.

Except as restricted or otherwise provided by the will, or by KRS 395.200 , a personal representative, acting reasonably for the benefit of the interested persons, may properly:

  1. Retain assets owned by the decedent pending distribution or liquidation including those in which the representative is personally interested or which are otherwise improper for trust investment;
  2. Receive assets from fiduciaries, or other sources;
  3. Perform, compromise or refuse performance for proper cause of the decedent’s contracts that continue as obligations of the estate, as he may determine under the circumstances;
  4. Satisfy written charitable pledges of the decedent irrespective of whether the pledges constituted binding obligations of the decedent or were properly presented as claims, if in the judgment of the personal representative the decedent would have wanted the pledges completed under the circumstances;
  5. If funds are not needed to meet debts and expenses currently payable and are not immediately distributable, deposit or invest liquid assets of the estate, including moneys received from the sale of other assets, in federally insured interest-bearing accounts, readily marketable secured loan arrangements or other prudent investments which would be reasonable for use by trustees generally;
  6. Acquire or dispose of an asset, other than land, for cash or on credit, at public or private sale; and manage, exchange, or change the character of an estate asset;
  7. Enter for any purpose into a lease for personal property as lessor or lessee, with or without option to purchase or renew, for a term within or extending beyond the period of administration;
  8. Abandon personal property when, in the opinion of the personal representative, it is valueless, or is so encumbered, or is in such condition that it is of no benefit to the estate;
  9. Vote stocks or other securities in person or by general or limited proxy;
  10. Pay calls, assessments, and other sums chargeable or accruing against or on account of securities, unless barred by the provisions relating to claims;
  11. Hold a security in the name of a nominee or in other form without disclosure of the interest of the estate but the personal representative is liable for any act of the nominee in connection with the security so held;
  12. Insure the assets of the estate against damage, loss and liability and himself against liability as to third persons;
  13. Borrow money with or without security to be repaid from the probatable assets or otherwise; and advance money for the protection of the estate;
  14. Effect a fair and reasonable compromise with any debtor or obligor, or extend, renew or in any manner modify the terms of any obligation owing to the estate. If the personal representative holds a mortgage, pledge or other lien upon property of another person, he may, in lieu of foreclosure, accept a conveyance or transfer of encumbered assets from the owner thereof in satisfaction of the indebtedness secured by lien;
  15. Pay taxes, assessments, compensation of the personal representative, and other expenses incident to the administration of the estate;
  16. Sell or exercise stock subscription or conversion rights; consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise;
  17. Allocate items of income or expense to either estate income or principal, as permitted or provided by law;
  18. Employ persons, including attorneys, auditors, investment advisors, or agents, to advise or assist the personal representative in the performance of his administrative duties; act without independent investigation upon their recommendations; and instead of acting personally, employ one (1) or more agents to perform any act of administration, whether or not discretionary;
  19. Prosecute or defend claims, or proceedings in any jurisdiction for the protection of the estate and of the personal representative in the performance of his duties;
  20. Sell or mortgage any personal property or any interest therein for cash, credit, or for part cash and part credit, and with or without security for unpaid balances;
  21. Provide for exoneration of the personal representative from personal liability in any contract entered into on behalf of the estate;
  22. Satisfy, settle or compromise claims and distribute the estate as provided by law; and
  23. Take such actions as are necessary to cause gains from the sale or exchange of estate assets as determined for federal income tax purposes, to be taxed for federal income tax purposes as a part of a distribution of income, including the power to allocate such gains to income for the purpose of making discretionary distributions and to allocate such gains to income which has been increased by an adjustment from principal to income pursuant to KRS 386.454(1), to a unitrust distribution, or to a distribution of principal to a beneficiary.

History. Enact. Acts 1976, ch. 218, § 24; 1980, ch. 259, § 21, effective July 15, 1980; 2012, ch. 59, § 6, effective July 12, 2012; 2014, ch. 25, § 113, effective July 15, 2014.

NOTES TO DECISIONS

1.Defense of Appointment.

The executrix’s duty to administer the estate included defending her appointment as executrix made by the testatrix; therefore, the trial court properly allowed a $2,000 fee, to be paid out of the estate, for an attorney’s services to the estate. Lucas v. Mannering, 745 S.W.2d 654, 1987 Ky. App. LEXIS 614 (Ky. Ct. App. 1987).

2.Attorney Fees.

The trial court erroneously awarded administrator’s attorney fees for estate without first finding that the fee were reasonable. White v. White, 883 S.W.2d 502, 1994 Ky. App. LEXIS 103 (Ky. Ct. App. 1994).

3.Prosecution of Claims.

Wrongful death action which an ancillary administrator filed in Kentucky, alleging that three corporations that owned and operated a casino were liable for a decedent’s death because they served alcohol to a customer who caused the decedent’s death, was time-barred under KRS 413.180 because the action was filed more than one year after an Indiana court appointed the decedent’s son to serve as the personal representative of the decedent’s estate. Although the ancillary administrator was appointed by a Kentucky court less than one year before he filed a wrongful death action in Kentucky, the statute of limitations began to run when the decedent’s son was appointed by the Indiana court because he could have obtained permission to file the same wrongful death action the ancillary administrator filed. Ford v. RDI/Caesars Riverboat Casino, LLC, 2008 U.S. Dist. LEXIS 97658 (W.D. Ky. Dec. 2, 2008), aff'd, 328 Fed. Appx. 1000, 2009 FED App. 0500N, 2009 U.S. App. LEXIS 15876 (6th Cir. Ky. 2009 ).

It was error to dismiss an alleged tortfeasor’s appeal of a wrongful death judgment when the tortfeasor’s notice of appeal only named the decedent’s estate “et al.” as “plaintiffs” and the tortfeasor as “defendant” due to the tortfeasor’s failure to name the estate’s co-administrators in the notice, because the notice substantially complied with CR 73.03, as (1) any judicial result bound the estate’s co-administrators, since only the co-administrators could defend the estate’s claims, under KRS 395.195(19), so the co-administrators were inexorably linked with the estate in litigation, and (2) the notice did not bar complete appellate relief, as only the co-administrators, having notice, could litigate the appeal. Flick v. Estate of Christina Wittich, 396 S.W.3d 816, 2013 Ky. LEXIS 89 ( Ky. 2013 ).

Cited:

McCaslin v. Hamilton, 726 S.W.2d 713, 1987 Ky. App. LEXIS 461 (Ky. Ct. App. 1987); Wood v. Wingfield, 816 S.W.2d 899, 1991 Ky. LEXIS 70 ( Ky. 1991 ); Priestley v. Priestley, 949 S.W.2d 594, 1997 Ky. LEXIS 66 ( Ky. 1997 ).

Opinions of Attorney General.

Resolution of this issue turns on the proper interpretation of the phrase “applicable law” appearing in 45 CFR 164.502(g)(4). KRS 209.140 does not vest an executor, administrator, or any other person with authority to act on behalf of a deceased individual or the individual’s estate, but is instead a confidentiality provision the terms of which are engrafted upon the Open Records law by operation of KRS 61.878(1)( l ). It is KRS Chapter 395 that grants authority to act on behalf of a deceased individual or of the individual’s estate, and that law, operating in tandem with 45 CFR 164.502(g)(4), requires the Cabinet to accord the requester, as her mother’s personal representative, the same treatment it would have accorded her mother. As the mother would have been entitled to a copy of the report per KRS 209.140 (5), so the requester is entitled to a copy. To the extent that OAG 2003-ORD-194 is inconsistent with this view, it is hereby overruled. OAG 2006-ORD-048.

Research References and Practice Aids

Kentucky Bench & Bar.

Ratliff, Kentucky Probate — A Simple Overview, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 16.

Treece, Powers of Attorney, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 26.

Collier, Property Sale in Estate Settlement, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 31.

395.196. Powers in KRS 395.195 not exclusive.

The powers set forth in KRS 395.195 are not intended to be exclusive but rather in addition to any powers which the personal representative has at the time of enactment of the provisions of KRS 395.195 .

History. Enact. Acts 1976, ch. 218, § 25.

Opinions of Attorney General.

Resolution of this issue turns on the proper interpretation of the phrase “applicable law” appearing in 45 CFR 164.502(g)(4). KRS 209.140 does not vest an executor, administrator, or any other person with authority to act on behalf of a deceased individual or the individual’s estate, but is instead a confidentiality provision the terms of which are engrafted upon the Open Records law by operation of KRS 61.878(1)( l ). It is KRS Chapter 395 that grants authority to act on behalf of a deceased individual or of the individual’s estate, and that law, operating in tandem with 45 CFR 164.502(g)(4), requires the Cabinet to accord the requester, as her mother’s personal representative, the same treatment it would have accorded her mother. As the mother would have been entitled to a copy of the report per KRS 209.140 (5), so the requester is entitled to a copy. To the extent that OAG 2003-ORD-194 is inconsistent with this view, it is hereby overruled. OAG 2006-ORD-048.

395.197. Applicability of powers in KRS 395.195 and 395.196.

The powers set forth in KRS 395.195 and 395.196 shall not be effective as to wills executed or personal representatives appointed and qualifying prior to June 19, 1976.

History. Enact. Acts 1976, ch. 218, § 53; 1980, ch. 259, § 22, effective July 15, 1980.

395.200. Sale of personal property by fiduciary.

At any time after the appointment of a fiduciary, the fiduciary, when satisfied that it would be for the best interests of the estate, may sell, at public or private sale, at the best price obtainable, and for cash or on such terms as the fiduciary may determine, any part or all of the personal property belonging to the estate, including dividend-paying and interest-bearing securities, except:

  1. Such tangible personal property as has been set apart to the surviving spouse as exempt.
  2. Property specifically bequeathed, when sale of such property is not necessary for the payment of debts, provided that such property may be sold with the consent of the person entitled thereto.
  3. Property as to which distribution in kind has been demanded prior to the sale by the surviving spouse or other beneficiary entitled to such distribution in kind, or property which the court may determine to be suitable for distribution in kind.
  4. Property, the sale of which is contrary to the wish of the testator, as shown by his will, unless the court finds that the sale is necessary to pay debts, funeral and burial expenses, taxes, and costs of administration, or that the retention of it will probably cause great loss to the estate.

History. 3854: amend. Acts 1944, ch. 115, § 2; 1976, ch. 218, § 21; 1982, ch. 277, § 12, effective July 15, 1982.

NOTES TO DECISIONS

1.Personalty Before Real Estate.

The general rule that personalty must be sold to pay debts before resort to the real estate is subject to certain exceptions. Breetz v. Hill, 293 Ky. 526 , 169 S.W.2d 632, 1943 Ky. LEXIS 669 ( Ky. 1943 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Ratliff, Kentucky Probate — A Simple Overview, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 16.

Collier, Property Sale in Estate Settlement, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 31.

395.210. Perishable goods to be sold; distribution of proceeds. [Repealed.]

Compiler’s Notes.

This section (3851, 3852) was repealed by Acts 1944, ch. 115, § 2.

395.220. Sale of land when authorized by will.

  1. The executors, or such of them as undertake the execution of the will, or, if all or more than one (1) undertake the execution of the will and part die or vacate the office, the residue or survivor, may sell and convey the land which the will directs or devises to the executor or to another person to be sold, or gives a discretionary power to sell, if no other person is appointed for that purpose, or if the person appointed refuses to perform the trust or dies before he has completed it.
  2. Pending an action or procedure to set aside or reject the will, there shall be no power to sell the land of the deceased, except under a judgment of court.

History. 3848, 3888.

NOTES TO DECISIONS

1.Power to Sell Land.

The testamentary power given an executor to sell land at public or private sale, at his discretion, does not require an order of court authorizing its exercise. Mann v. Peoples-Liberty Bank & Trust Co., 256 S.W.2d 489, 1953 Ky. LEXIS 739 ( Ky. 1953 ).

2.— Coexecutors.

Where the testator names two executors in his will but only one of them qualifies, the one so qualifying has the powers given to the executors in the will. Wells v. Lewis, 61 Ky. 269 , 1863 Ky. LEXIS 56 ( Ky. 1863 ) (decided under prior law). See Colsten's Heirs v. Chaudet, 67 Ky. 666 , 1868 Ky. LEXIS 216 ( Ky. 1868 ) (decided under prior law); Fontaine v. Dunlap, 82 Ky. 321 , 6 Ky. L. Rptr. 201 , 1884 Ky. LEXIS 82 ( Ky. 1884 ) (decided under prior law).

Where the testator appoints two named persons executors in his will and one of them predeceases the testator and the other survives the testator and qualifies as executor, and the will gives the executors a discretionary power to convey the land to named persons, the sole executor has the power to make the conveyance. Hodgkin v. Martin, 262 Ky. 703 , 91 S.W.2d 19, 1936 Ky. LEXIS 88 ( Ky. 1936 ).

Where the will names two executors and one refuses to qualify, in the absence of a contrary intent, the one who qualifies may exercise all of the powers of the executors. Mann v. Peoples-Liberty Bank & Trust Co., 256 S.W.2d 489, 1953 Ky. LEXIS 739 ( Ky. 1953 ).

3.— Trustees.

New corporation created upon merger of old corporation named as trustee in will, and person named by court to succeed individual named in will as joint trustee, had power of sale vested in trustees by will. Penn v. Pennsylvania Co. for Ins., etc., 294 Ky. 271 , 171 S.W.2d 437, 1943 Ky. LEXIS 431 ( Ky. 1943 ).

Where will devised estate to trustees, to hold and administer during lives of testator’s wife, children and grandchildren living at time of testator’s death, and with directions to “pay over the principal” to remaindermen on termination of the trust, and the trustees were given the power “to control, manage, invest, reinvest, and keep same invested,” and the estate consisted of a large amount of real estate and personal property, it was held that the trustees had the power to sell and convey real estate. Penn v. Pennsylvania Co. for Ins., etc., 294 Ky. 271 , 171 S.W.2d 437, 1943 Ky. LEXIS 431 ( Ky. 1943 ).

4.— Implied.

The general rule is that when an instrument creating a trust directs the trustee to do something, the doing of which cannot be accomplished other than by a sale of real estate, the power of sale is implied. Penn v. Pennsylvania Co. for Ins., etc., 294 Ky. 271 , 171 S.W.2d 437, 1943 Ky. LEXIS 431 ( Ky. 1943 ).

Where will gave executor no express power to sell real estate, the fact that will directed estate to be divided equally among beneficiaries, that testatrix had no real estate when she made will, and that real estate could not be easily divided was sufficient to raise implied power of executor to sell real estate. Sweeney's Ex'r v. Anderson, 307 Ky. 679 , 212 S.W.2d 289, 1948 Ky. LEXIS 826 ( Ky. 1948 ).

5.— Power to Mortgage.

The power of sale given to trustees by a will may in some circumstances be extended to include the power to mortgage. Breetz v. Hill, 293 Ky. 526 , 169 S.W.2d 632, 1943 Ky. LEXIS 669 ( Ky. 1943 ).

Where testator vested trustees with full power of sale of real estate, and “with all the power and authority I would have if living,” the will indicated a desire that the estate be kept intact as far as possible, the personal property, aside from a going grocery business, was insufficient to meet any substantial portion of testator’s debts and estate tax liability, and the realty consisted of a residence and an income-producing business property which could be sold only at a sacrifice, it was held that the trustee had power to mortgage the income-producing realty for a sum sufficient to pay the debts and taxes, it appearing that the income would be sufficient to pay off the mortgage during the life of the trust. Breetz v. Hill, 293 Ky. 526 , 169 S.W.2d 632, 1943 Ky. LEXIS 669 ( Ky. 1943 ).

6.— Title Vested in Heirs.

Even though the landed estate of testator did vest in fee simple in his heirs, their title and rights therein were subject to the power of executor to sell the property, where testator authorized executor to sell and convey property in order to make final settlement and distribution of estate. Hertz v. Burris, 289 Ky. 369 , 158 S.W.2d 951, 1942 Ky. LEXIS 559 ( Ky. 1942 ).

Though title to land descends to heirs, where will directs sale by executor, the holder of legal title by descent may be divested thereof by the mere exercise of the power of the executor. Wilson v. Stephens, 290 Ky. 390 , 161 S.W.2d 604, 1942 Ky. LEXIS 408 ( Ky. 1942 ).

7.— Infants’ Land.

Where will authorized sale of realty by executor, fact that executor invoked aid of court and sale was made by commissioner but proceedings were insufficient for a judicial sale as to infants did not affect title of purchaser if fair price was paid. Buckner v. McEldowney's Ex'r, 280 Ky. 14 , 132 S.W.2d 330, 1939 Ky. LEXIS 52 ( Ky. 1939 ).

Research References and Practice Aids

Cross-References.

Purchaser of land devised to be sold need not look to application of purchase money, KRS 394.530 .

Venue of actions concerning will, KRS 452.410 .

Kentucky Bench & Bar.

Ratliff, Kentucky Probate — A Simple Overview, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 16.

Collier, Property Sale in Estate Settlement, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 31.

395.230. Stock transfer may be ordered by county clerk. [Repealed.]

Compiler’s Notes.

This section (3885-2) was repealed by Acts 1960, ch. 186, Art. VI, § 2.

395.240. Sale of choses in action — Compromise of claims.

In actions for the settlement of decedents’ estates, the court may direct the sale of choses in action, including judgments, and may authorize the personal representative to compromise claims growing out of contract or tort due the estate, as well as claims on contract or tort against the estate. A personal representative may compromise and settle any claim or demand for damages growing out of injury to or the death of the decedent.

History. 3882.

NOTES TO DECISIONS

1.Advance Authorization.

Before a compromise, which has not been authorized in advance by the court, entered into by a personal representative of claims against his decedent will be enforced by a court of equity, it must appear the compromise was beneficial to the estate, and a proper one for the personal representative to make. Pullins' Adm'r v. Smith, 106 Ky. 418 , 50 S.W. 833, 20 Ky. L. Rptr. 1993 , 1899 Ky. LEXIS 60 ( Ky. 1899 ).

2.Judgment.

An administrator is the owner of a judgment obtained by him for the estate, and may sell or assign it without consent of heirs or court. Turner v. Gambill, 275 Ky. 330 , 121 S.W.2d 705, 1938 Ky. LEXIS 423 ( Ky. 1938 ).

3.Compromise Outside Settlement.

Where the deceased was a member of a partnership, and the affairs of that partnership were being adjusted and a suit to settle the estate had been filed in the Circuit Court, a compromise agreement was not binding upon the administrator until it was approved by the Circuit Court where the action to settle the decedent’s estate was pending. Hudson's Adm'r v. Collins, 239 Ky. 131 , 38 S.W.2d 975, 1931 Ky. LEXIS 735 ( Ky. 1931 ). See Crum's Adm'r v. Crum, 263 Ky. 219 , 92 S.W.2d 63, 1936 Ky. LEXIS 156 ( Ky. 1936 ).

4.Renewal of Note.

A personal representative has no power to renew a note signed by the decedent. Attempted renewal, and cancellation of original note, did not discharge original indebtedness, or release pledged collateral, where there was no intention to accomplish a novation or to release the estate. State Nat'l Bank v. Thompson, 277 Ky. 527 , 126 S.W.2d 412, 1938 Ky. LEXIS 569 ( Ky. 1939 ).

5.Voidable Appointment.

Where one wrongfully appointed administrator of the decedent’s estate settled with one who was responsible for the wrongful death of the decedent, the appointment was voidable and the settlement was valid. McFarland's Adm'r v. Louisville & N. R. Co., 130 Ky. 172 , 113 S.W. 82, 1908 Ky. LEXIS 253 ( Ky. 1908 ).

6.Premature Appointment.

Where one has been prematurely appointed administrator and settles a claim against one for the wrongful death of the deceased, the settlement is binding if made in good faith and without fraud, but it may be set aside by the heirs, if entered into in bad faith and to defraud them. Leach v. Owensboro C. R. Co., 137 Ky. 292 , 125 S.W. 708, 1910 Ky. LEXIS 569 ( Ky. 1910 ).

7.Title to Real Estate.

Personal representative may take title to real estate in settlement of debt due estate, and holds title as trustee for creditors and heirs. Thompson v. Fraley, 279 Ky. 323 , 130 S.W.2d 793, 1939 Ky. LEXIS 285 ( Ky. 1939 ).

8.Decedent’s Estates’ Claims Against Each Other.

Various claims by one decedent’s estate against another decedent’s estate, where a suit is pending in the Circuit Court to settle the estates, can be compromised only with the consent of the Circuit Court. In such a situation the approval of the county (now District) Court of the compromise amounts to nothing. Trevathan's Ex'r v. Dees' Ex'rs, 221 Ky. 396 , 298 S.W. 975, 1927 Ky. LEXIS 731 ( Ky. 1927 ). See Dees' Adm'r v. Dees' Ex'rs, 227 Ky. 670 , 13 S.W.2d 1025, 1929 Ky. LEXIS 951 ( Ky. 1929 ).

9.Wrongful Death.

The personal representative is the only person who has the authority to settle a claim for the wrongful death of the decedent, after his appointment as personal representative. The beneficiary of the recovery cannot settle the claim and cut off the right of the personal representative to sue. Louisville v. Hart's Adm'r, 143 Ky. 171 , 136 S.W. 212, 1911 Ky. LEXIS 377 ( Ky. 1911 ).

10.Collusion and Fraud.

The right to compromise a claim for wrongful death of deceased is in the personal representative, but where the party responsible for the wrongful death secures, through collusion and fraud, the appointment of a personal representative and he refuses to sue, the beneficiaries may sue by making the administrator a defendant also. McLemore v. Sebree Coal & Mining Co., 121 Ky. 53 , 88 S.W. 1062, 28 Ky. L. Rptr. 25 , 1905 Ky. LEXIS 177 ( Ky. 1905 ).

Where a personal representative enters into a compromise of claim for wrongful death of decedent for the purpose of defrauding a distributee, and the other party knows of the purpose, it is a fraud upon the estate and will not be upheld as between the estate and the other party. New Bell Jellico Coal Co. v. Stewart's Adm'x, 155 Ky. 415 , 159 S.W. 962, 1913 Ky. LEXIS 273 ( Ky. 1913 ).

395.250. Inventory — When to be returned — Copies are evidence.

It shall be the duty of a personal representative of a decedent to return an inventory in duplicate within two (2) months from the time of qualifying as such, to the clerk’s office of the court in which he qualified, the original of which shall be recorded by the clerk and the duplicate shall be mailed by the clerk to the secretary of revenue. Copies from the record of the inventory or appraisement shall be prima facie evidence for or against such representative.

History. 3855: amend. Acts 1942, ch. 167, § 11.

NOTES TO DECISIONS

1.Construction.

The provisions of this section are mandatory and the county (now District) Court has the power to enforce them even though a suit is pending in Circuit Court to settle the fiduciary’s accounts. McGee v. Weissinger, 147 Ky. 321 , 144 S.W. 20, 1912 Ky. LEXIS 234 ( Ky. 1912 ).

2.Duty to File.

It is the duty of the personal representative to file the inventory and keep his accounts and reports in order. If he fails to do so and then claims he overpaid the distributees, the court will not conjecture as to the overpayment. Ward v. Shire, 65 S.W. 8, 23 Ky. L. Rptr. 1279 , 1901 Ky. LEXIS 557 (Ky. Ct. App. 1901).

The personal representative must file his vouchers, records and other material and settle the estate in the county (now District) Court. He cannot distribute to the satisfaction of the distributees, pay the debts, and merely report the matter to the county court, even though all the distributees are of age and consent. Dant's Ex'rs v. Cooper, 123 Ky. 359 , 96 S.W. 454, 29 Ky. L. Rptr. 778 , 1906 Ky. LEXIS 148 ( Ky. 1906 ).

3.Inheritance Taxes.

The county (now District) Court may require the filing of an inventory for the purposes of inheritance taxes. Commonwealth v. Gaulbert's Adm'r, 134 Ky. 157 , 119 S.W. 779, 1909 Ky. LEXIS 365 ( Ky. 1909 ). See Commonwealth v. Peter, 136 Ky. 689 , 124 S.W. 896, 1910 Ky. LEXIS 530 ( Ky. 1910 ).

Cited:

Slack’s Ex’r v. Barrett, 290 Ky. 251 , 160 S.W.2d 595, 1942 Ky. LEXIS 368 ( Ky. 1942 ); McCaslin v. Hamilton, 726 S.W.2d 713, 1987 Ky. App. LEXIS 461 (Ky. Ct. App. 1987).

Opinions of Attorney General.

The inventory required by this section is mandatory even though the fiduciary qualifies for an informal settlement under KRS 25.172 (repealed). OAG 74-280 .

The inventory required by this section need not be filed by a testamentary trustee, unless the trustee is also an executor or administrator. OAG 91-163 .

Research References and Practice Aids

Kentucky Bench & Bar.

Ratliff, Kentucky Probate — A Simple Overview, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 16.

Kentucky Law Journal.

Patton, Omission of Realty in Probate Administration, 42 Ky. L.J. 666 (1954).

395.255. Notice to compel filing of inventory or account — Removal for delinquency — Disallowance of compensation.

If a fiduciary neglects or refuses to file an inventory or account when due according to law, or when ordered by the court, the court shall notify the fiduciary of his delinquency and fix a date when such inventory or account must be filed. Unless there is pending in the circuit court a suit to settle the estate such neglect or refusal shall be grounds for removal by the court. If the fiduciary fails to file such account within thirty (30) days after the date fixed in said notice, no allowance shall be made for his services unless the court enters upon its minutes an order that such delay was justified.

History. Enact. Acts 1942, ch. 167, § 12.

NOTES TO DECISIONS

1.Construction.

The penalty provided for in KRS 395.990 is conditioned upon a notice being given as required by this section. Hill v. Roberts, 311 S.W.2d 569, 1958 Ky. LEXIS 212 ( Ky. 1958 ).

2.Failure to Give Notice.

Where executrix-fiduciary under will leaving residue of estate to mental incompetent and remainder to appellants failed to file periodic settlements as required by KRS 25.175 (repealed), she could not be charged with a penalty of $10.00 for each day under KRS 395.990 , since no notice was given as required by this section. Hill v. Roberts, 311 S.W.2d 569, 1958 Ky. LEXIS 212 ( Ky. 1958 ).

3.Heirs’ Right to Demand Accounting.

Failure of heirs to demand that settlement be made at time required by statute does not estop heirs from demanding a proper accounting at a later time. Kaufman v. Kaufman's Adm'r, 292 Ky. 351 , 166 S.W.2d 860, 1942 Ky. LEXIS 102 ( Ky. 1942 ).

4.— Failure to Assert.

Heirs did not lose right to recover for loss occasioned by reason of embezzlement by attorney to whom administrator had entrusted funds of estate, by failing to demand accounting or settlement for a period of five years. Kaufman v. Kaufman's Adm'r, 292 Ky. 351 , 166 S.W.2d 860, 1942 Ky. LEXIS 102 ( Ky. 1942 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Motion and Order for Extension of Time to File Inventory, Form 233.15.

395.260. Personal estate of nonresident — Administration of.

When administration is taken in this state on the estate of a nonresident decedent, the residue of his personal estate, after payment of his debts to citizens of this state, may either be distributed and disposed of according to the law of the decedent’s domicile, and if he has a will it shall be governed by the law of his domicile, or, if the court thinks best and so orders, such residue may be transmitted to the personal representatives, if there are any, in the state of the decedent’s domicile, to be disposed of there according to the law of that state.

History. 3898, 3899.

NOTES TO DECISIONS

1.Full Faith and Credit.

Where the wife died intestate and childless, in a state that follows the common-law rule that all her personal property is inherited by her husband, and possessed of personal property located in Kentucky, the courts of this state will give full faith and credit to the laws of the state where the husband and wife were domiciled, and in such case the husband inherits all personal property located in Kentucky. Lee v. Belknap, 163 Ky. 418 , 173 S.W. 1129, 1915 Ky. LEXIS 248 ( Ky. 1915 ). See Barrett v. Barrett's Adm'r, 170 Ky. 91 , 185 S.W. 499, 1916 Ky. LEXIS 15 ( Ky. 1916 ).

2.Suit Against Nonresident Deceased’s Kentucky Administrator.

A resident of Ohio is entitled to maintain an action against a Kentucky administrator of a nonresident of Kentucky, although an administrator of the deceased’s estate had been appointed in the state of his domicile and had sufficient assets to satisfy plaintiff’s claim. Bertram v. Jones, 205 Ky. 691 , 266 S.W. 385, 1924 Ky. LEXIS 215 ( Ky. 1924 ).

Research References and Practice Aids

Cross-References.

Department of revenue to determine inheritance tax on nonresident’s estate, KRS 140.270 .

Kentucky Law Journal.

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Venue and Change of Venue, § 38.00.

395.270. When action against representative may be commenced.

Two (2) months must run after the date of the qualification of the first personal representative of a decedent’s estate before an action shall be commenced against any executor or administrator thereof, except against an executor de son tort. Any action brought in violation of this section shall be dismissed with costs, except that an alleged creditor whose claim has been denied in writing by the fiduciary may commence action immediately after receipt of such denial.

History. 3847: amend. Acts 1942, ch. 167, § 15; 1970, ch. 257, § 2; 1988, ch. 90, § 5, effective July 15, 1988.

NOTES TO DECISIONS

1.Application.

A suit to require the personal representative to list the property of the decedent’s estate for taxes is not an action under the provisions of this section. Commonwealth ex rel. Cummins v. Ryan's Ex'rs, 126 Ky. 649 , 104 S.W. 727, 31 Ky. L. Rptr. 1069 , 1907 Ky. LEXIS 87 ( Ky. 1907 ).

Declaratory judgment action to determine rights to proceeds of life policy as between assignee of policy and administrator of deceased insured’s estate was not governed by this section. Arrowood v. Duff, 287 Ky. 107 , 152 S.W.2d 291, 1941 Ky. LEXIS 507 ( Ky. 1941 ).

This section applies to actions asserting contested liability against decedent’s estate and not to action under declaratory judgment statute. Arrowood v. Duff, 287 Ky. 107 , 152 S.W.2d 291, 1941 Ky. LEXIS 507 ( Ky. 1941 ).

2.Time Limitation.

It is not necessary to wait six months after the death of the intestate to institute suit against the administrator to settle the estate. Holland v. Lowe, 101 Ky. 98 , 39 S.W. 834, 19 Ky. L. Rptr. 97 , 1897 Ky. LEXIS 157 ( Ky. 1897 ).

In computing the period of this statute of limitations in a claim against the decedent’s estate, the period that lapses between the death of the decedent and the appointment of the personal representative is to be included. Davis' Adm'r v. Auxier, 41 S.W. 767, 19 Ky. L. Rptr. 719 (1897).

Where a cause of action accrues during the lifetime of the debtor, and the debtor dies and the administrator is appointed for his estate more than one year before the expiration of the time limit within which an action might be brought, this section does not stop the running of the statute of limitations. Johnson v. Equitable Life Assurance Soc., 137 Ky. 437 , 125 S.W. 1074, 1910 Ky. LEXIS 587 ( Ky. 1 910 ). See Johnson v. Hogg, 165 Ky. 1 , 176 S.W. 350, 1915 Ky. LEXIS 469 ( Ky. 1915 ).

A creditor cannot institute a suit against a personal representative, to collect a claim against the estate, until after the lapse of the time provided for in this section. Coffee v. Owens' Adm'r, 216 Ky. 142 , 287 S.W. 540, 1926 Ky. LEXIS 861 ( Ky. 1926 ).

Where a petition showed on its face that the action was brought less than six months after the qualification of the executor, the petition should have been dismissed. Collett v. Helton, 264 Ky. 214 , 94 S.W.2d 603, 1936 Ky. LEXIS 296 ( Ky. 1936 ) (decision prior to 1942 amendment).

Where the tort action was filed only two months after the administrator was appointed, dismissal was proper with costs to the plaintiff. Homer R. Hutchinson Estate v. Reyes, 715 S.W.2d 896, 1986 Ky. App. LEXIS 1216 (Ky. Ct. App. 1986).

Although the plaintiff’s original action was dismissed because it was commenced less than five months after the appointment of the administrator, the intervenor’s action against the defendant was not barred by this section, as substantial rights had accrued and injustice would result. Homer R. Hutchinson Estate v. Reyes, 715 S.W.2d 896, 1986 Ky. App. LEXIS 1216 (Ky. Ct. App. 1986).

3.Testator Provides Longer Time for Settlement.

Where the testator provides in his will a definite time, longer than the statutory period, at which his testator is to make settlement of his estate, that specification of time is binding on the devisees in the will, and a suit cannot be commenced by them to settle the estate earlier. Linthecum v. Vowel's Ex'r, 118 Ky. 338 , 80 S.W. 1090, 26 Ky. L. Rptr. 221 , 1904 Ky. LEXIS 34 ( Ky. 1904 ).

4.Declaratory Action.

Action for declaration of rights could not be instituted for determination of questions presented for decision in a pending action, despite contention that such pending action had been prematurely instituted against personal representative, where it was in fact pending, even if chancellor erred in not dismissing it. Gibbs v. Tyree, 287 Ky. 656 , 154 S.W.2d 732, 1941 Ky. LEXIS 604 ( Ky. 1941 ).

5.— Premature as to Personal Representative.

Action for declaratory judgment making administratrix one of parties defendant, instituted within six months following qualification of personal representative, was premature under this section and KRS 395.510 so far as it sought to have administratrix do anything. Sullenger v. Sullenger's Adm'x, 287 Ky. 232 , 152 S.W.2d 571, 1941 Ky. LEXIS 511 ( Ky. 1941 ).

6.Dismissal with Costs.

Suit by heir to settle ancestor’s estate filed prematurely must be dismissed with costs. Courtney v. Morgan, 288 Ky. 342 , 156 S.W.2d 175, 1941 Ky. LEXIS 109 ( Ky. 1941 ).

7.Executor De Son Tort.

One who takes possession of the goods of a dead man, without color of title, becomes an executor de son tort. Johnston v. Duncan, 13 Ky. 163 , 1823 Ky. LEXIS 36 ( Ky. 1823 ) (decided under prior law).

The executor de son tort is liable as any other executor for the property that comes into his hands. The only difference between this and a regularly appointed executor is the difference of periods during which the one or the other may be sued after the death of the testator. Brown's Ex'rs v. Durbin's Adm'r, 28 Ky. 170 , 1830 Ky. LEXIS 405 ( Ky. 1830 ) (decided under prior law).

Cited:

Davis’ Adm’r v. Auxier, 41 S.W. 767, 19 Ky. L. Rptr. 719 (1897); Collett v. Helton, 264 Ky. 214 , 94 S.W.2d 603, 1936 Ky. LEXIS 296 ( Ky. 1936 ); Kentucky-Virginia Stone Co. v. Ball, 426 S.W.2d 455, 1968 Ky. LEXIS 650 ( Ky. 1968 ).

Research References and Practice Aids

Cross-References.

Fiduciaries, liability for costs, KRS 453.140 .

Infant’s right of action against personal representative accrues at age of 21, KRS 413.170 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Written Statement of Claim Against Estate, Form 234.09.

395.275. When plaintiff may revive action against defendant’s representative. [Repealed.]

Compiler’s Notes.

This section (C. C. 507: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1974, ch. 299, § 19. For present law see KRS 395.278 .

395.276. Limitation on time for revivor. [Repealed.]

Compiler’s Notes.

This section (C. C. 508: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1974, ch. 299, § 19. For present law see KRS 395.278 .

395.277. When representative or successor may revive action — Limitation. [Repealed.]

Compiler’s Notes.

This section (C. C. 509: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1974, ch. 299, § 19. For present law see KRS 395.278 .

395.278. When party may revive action and limitation.

An application to revive an action in the name of the representative or successor of a plaintiff, or against the representative or successor of a defendant, shall be made within one (1) year after the death of a deceased party.

History. Enact. Acts 1974, ch. 299, § 16.

NOTES TO DECISIONS

Analysis

1.In General.

Former section governing revivor by personal representative was a statute of limitation and not a part of practice and procedure. Daniel v. Fourth & Market, Inc., 445 S.W.2d 699, 1968 Ky. LEXIS 138 ( Ky. 1968 ) (decided under prior law).

2.Mandatory Time Limit.

The period of time allowed by former section for reviving an action was not subject to enlargement under CR 6.02. Daniel v. Fourth & Market, Inc., 445 S.W.2d 699, 1968 Ky. LEXIS 138 ( Ky. 1968 ) (decided under prior law).

This section relating to the revivor of an action is a statute of limitation, rather than a statute relating to pleading, practice, or procedure, and the time limit provided for within this section is mandatory and not discretionary, thereby preventing a party or the court from extending such time under CR 6.02. Mitchell v. Money, 602 S.W.2d 687, 1980 Ky. App. LEXIS 346 (Ky. Ct. App. 1980).

This section, relating to the reviver of an action, is a statute of limitation, rather than a statute relating to pleading, practice or procedure, and the time limit within this section is mandatory and not discretionary, thereby preventing a party or the court from extending such time via Civil Rule 6.02. Snyder v. Snyder, 769 S.W.2d 70, 1989 Ky. App. LEXIS 18 (Ky. Ct. App. 1989), overruled in part, Estate of Benton v. Currin, 615 S.W.3d 34, 2021 Ky. LEXIS 5 ( Ky. 2021 ).

When considered together, this section and CR 25.01(1) require that when a plaintiff dies, any action pending on the part of the deceased plaintiff must be revived by the decedent’s successor or personal representative within one year, and the successor or personal representative must be substituted as the real party in interest. Hammons v. Tremco, Inc., 887 S.W.2d 336, 1994 Ky. LEXIS 128 ( Ky. 1994 ).

When an executor was substituted for a decedent in an action removed to federal court and remanded to state court, the time limit for seeking to revive the action was not tolled while the action was removed to federal court because (1) the tolling statute only applied to a dismissal for lack of jurisdiction, (2) the executor began no new action within 90 days of remand, and (3) the revival time could not be tolled. Stone v. Dean Dairy Holdings, LLC, 2018 Ky. App. LEXIS 307 (Ky. Ct. App. Dec. 14, 2018).

3.Failure to Revive Action.

Where judgment was rendered in favor of creditors of an insolvent estate more than a year after the death or dissolution of some of the creditors and surviving creditors moved at a subsequent term of court to disallow the claims of such other creditors on the ground that no revivor had been entered, the court was without power to vacate the judgment except by a proceeding under rule providing for modification or vacation of judgment. Peoples State Bank & Trust Co. v. Hardy, 243 S.W.2d 480, 1951 Ky. LEXIS 1130 ( Ky. 1951 ) (decided under prior law).

Where a party sued for her own personal injuries and died while the suit was pending on February 27, 1964, an administrator was appointed April 7, 1964, the defendant moved for dismissal on March 18, 1965, for failure to revive, and the administrator first moved to revive on March 22, 1965, the trial court properly sustained the motion to dismiss. New Farmers Nat'l Bank v. Thomas, 411 S.W.2d 672, 1967 Ky. LEXIS 480 ( Ky. 1967 ) (decided under prior law).

Circuit Court was not in error when it refused to revive divorce action and enter a modified judgment against husband’s estate as mandated by the Supreme Court since the mandate was not self-executing and relief was not sought within the time provided by statute. Duvall v. Duvall, 550 S.W.2d 506, 1977 Ky. LEXIS 428 ( Ky. 1977 ) (decided under prior law).

Where the deceased named defendant was never served with process or entered an appearance in the first action filed by the plaintiff, the trial court never obtained personal jurisdiction over the decedent, despite the fact that the complaint was served on the decedent’s wife and an answer was filed on the decedent’s behalf, and in the language of this section the decedent never became a “party” to that action; thus, the dismissal of that first action, because of the plaintiff’s failure to timely revive it, was not res judicata to a second action that the plaintiff filed against the decedent by and through his administrator. Mitchell v. Money, 602 S.W.2d 687, 1980 Ky. App. LEXIS 346 (Ky. Ct. App. 1980).

An action which is not revived within the one-year statutory period of this provision must be dismissed. A personal representative does not automatically succeed to his decedent’s rights and status as a litigant and, thus, is not a party to any suit against the decedent unless the action is revived. Snyder v. Snyder, 769 S.W.2d 70, 1989 Ky. App. LEXIS 18 (Ky. Ct. App. 1989), overruled in part, Estate of Benton v. Currin, 615 S.W.3d 34, 2021 Ky. LEXIS 5 ( Ky. 2021 ).

Plaintiffs claimed that their attorneys negligently failed to file a motion to revive their suit against their stepmother within one (1) year after her death as required by KRS 395.278 . Plaintiffs’ suit was properly dismissed on the attorneys’ summary judgment motion because no action to revive had been needed; as the stepmother’s estate had revived her counterclaims against the children, the estate was before the court for all purposes. Bohlinger v. O'Hara, Ruberg, Taylor, Sloan & Sergent, 2004 Ky. App. LEXIS 317 (Ky. Ct. App. Oct. 29, 2004, sub. op., 2004 Ky. App. Unpub. LEXIS 930 (Ky. Ct. App. Oct. 29, 2004).

Where, despite clear instruction from the court, a seller’s tendered amended complaint failed to remedy defects in the initial complaint, such as identifying each owner of, and the owner’s percentage interest in, property that had been logged, the amended complaint did not comply with KRS 395.278 and the court granted the logger’s motions to strike the tendered amended complaint and to dismiss the lawsuit. Cooper v. Adams, 2006 U.S. Dist. LEXIS 55477 (E.D. Ky. Aug. 9, 2006).

An estate’s negligence action against hospital employees was properly dismissed because the action was not revived within one year of the decedent’s death pursuant to KRS 395.278 , which was a period of limitation and had to be strictly construed; the Kentucky Insurance Guaranty Association Act, KRS 304.36-085 , does not stay an action subject to revival and does not suspend the statute of limitations in KRS 395.278 . Hardin County v. Wilkerson, 255 S.W.3d 923, 2008 Ky. LEXIS 151 ( Ky. 2008 ).

Plaintiff’s personal injury suit against a motorist was properly dismissed because the motorist died while the suit was pending, and the action was not revived within one year of the motorist’s death as required by KRS 395.278 ; although plaintiff’s counsel argued that the motorist’s counsel intentionally misled him into thinking she was going to provide him information he needed to file the probate petition and that, therefore, the KRS 395.278 period was tolled, counsel did not show that the motorist’s counsel hid the truth from anyone, and in the five months between learning of the motorist’s death and the reviver deadline, plaintiff never moved the trial court to compel the motorist’s counsel to act. Frank v. Estate of Enderle, 253 S.W.3d 570, 2008 Ky. App. LEXIS 76 (Ky. Ct. App. 2008), overruled in part, Estate of Benton v. Currin, 615 S.W.3d 34, 2021 Ky. LEXIS 5 ( Ky. 2021 ).

Although a medical malpractice action alleging delay in the diagnosis of breast cancer had to be revived or brought in the name of the personal representative of the estate when the patient/party in interest died under CR 25.01(1), KRS 411.140 , and KRS 395.278 , a radiologist’s employer waived the revival requirement by continuing to actively litigate the case for over three years after the expiration of the revival statute of limitations. Burnham v. Radiology Group of Paducah, P.S.C., 2010 Ky. App. LEXIS 44 (Ky. Ct. App. Feb. 19, 2010).

4.Conflict with Federal Rule.

Where in wrongful death action, original personal representative plaintiff died after initiating action, successor administratrix could be substituted as plaintiff in wrongful death action, even though motion for substitution was not filed until more than one year after death of decedent, contrary to this section, since the substitution was allowable under F.R. Civ. P. 25(a)(1), and where this section and F.R. Civ. P. 25 (a)(1) conflict, the federal rule prevails, because the federal rule is procedural under the Rules Enabling Act, 28 USCS § 2072 and does not abridge substantive rights within the meaning of the Enabling Act; thus, substitution under F.R. Civ. P. 25 (a)(1) was proper. Boggs v. Blue Diamond Coal Co., 497 F. Supp. 1105, 1980 U.S. Dist. LEXIS 13299 (E.D. Ky. 1980 ).

When an executor was substituted for a decedent in an action remanded to state court, the federal substitution rule did not displace the Kentucky revival statute, under the Rules Enabling Act, because the Rule and statute did not directly conflict. Stone v. Dean Dairy Holdings, LLC, 2018 Ky. App. LEXIS 307 (Ky. Ct. App. Dec. 14, 2018).

5.Subsequent Motion in Different County.

Where plaintiffs who filed action against defendant prior to decedent’s death alleged that defendant mismanaged decedent’s estate, filed original motion to revive the action within one year of decedent’s death and after failing to qualify as administrators in one county, qualified in another county, a subsequent motion to revive the action made more than one year after decedent’s death in the latter county was not barred by the one-year limitation under this section since it related back to the original motion and gave defendant notice of plaintiffs’ intention to pursue the original action. Preece v. Adams, 616 S.W.2d 787, 1980 Ky. App. LEXIS 433 (Ky. Ct. App. 1980).

6.Death of Litigant.

When read together this section and Civil Rule 25.01 require that when a litigant dies, any action pending with respect to him must be revived against the decedent’s administration and the administrator must be substituted as the real party in interest before the action can proceed; further, when a judgment of a trial court is attacked as void, the real parties in interest must be brought before the court. Snyder v. Snyder, 769 S.W.2d 70, 1989 Ky. App. LEXIS 18 (Ky. Ct. App. 1989), overruled in part, Estate of Benton v. Currin, 615 S.W.3d 34, 2021 Ky. LEXIS 5 ( Ky. 2021 ).

Revival of a proceeding regarding a qualified domestic relations order was not possible where the former wife’s estate waited nearly three (3) years after her death to make a motion substituting the wife’s parents as parties to the proceeding under CR 25.01. Smith v. Rice, 139 S.W.3d 539, 2004 Ky. App. LEXIS 202 (Ky. Ct. App. 2004).

Attorney’s failure to disclose the death of his client during litigation of a driver’s personal injury action against the client until after the limitations period for revivor under KRS 395.278 had expired misled the driver; it therefore created an estoppel against asserting the limitations defense that would be binding on the client’s estate as a beneficiary of the conduct creating the estoppel once the abatement was removed by the application of CR 25.01 in revivor to substitute the client’s personal representative. Harris v. Jackson, 192 S.W.3d 297, 2006 Ky. LEXIS 132 ( Ky. 2006 ).

Revival under KRS 395.278 and substitution of the parties pursuant to CR 25.01 was not required for a case to proceed where an individual’s action seeking to set aside a deed had been submitted to the trial court for judgment before the individual died. Theisen v. Estate of Wilson, 226 S.W.3d 59, 2007 Ky. LEXIS 132 ( Ky. 2007 ), dismissed, 2012 Ky. App. Unpub. LEXIS 25 (Ky. Ct. App. Jan. 13, 2012).

When an injured party’s widow sought to be substituted in her husband’s claim, she did so within the statutory time frame when she sought substitution within one year of his death, after an order appointing her as his executrix was signed, but before the clerk entered it, because the order was effective as soon as it was signed, under KRS 395.105 . Batts v. Ill. Cent. R.R., 217 S.W.3d 881, 2007 Ky. App. LEXIS 65 (Ky. Ct. App. 2007).

Decedent’s estate failed to revive an action because it was insufficient for the estate to simply be substituted as a party in the pending litigation, as the estate additionally had to request that the action be revived, so that any order entered after the decedent’s passing, therefore, was void. Currin v. Benton, 2019 Ky. App. LEXIS 80 (Ky. Ct. App. May 3, 2019), rev'd, 615 S.W.3d 34, 2021 Ky. LEXIS 5 ( Ky. 2021 ).

Plaintiff properly complied with all the applicable substitution requirements because plaintiff took the appropriate steps under federal law to substitute himself as a party in his representative capacity, plaintiff’s motion for substitution was ultimately granted by the federal court while the case was still pending in federal court, and no separate motion for revival was required. Stone v. Dean Dairy Holdings, LLC, 638 S.W.3d 877, 2022 Ky. App. LEXIS 3 (Ky. Ct. App. 2022).

Where plaintiff sought to foreclose on property but was unable to serve debtor due to his death, dismissal of complaint against debtor’s heirs at law for failure to revive the suit was not warranted since the heirs at law were the real parties in interest and provision was inapplicable as debtor was not served prior to death. Pennymac Loan Servs. v. Lyles, 648 S.W.3d 699, 2022 Ky. App. LEXIS 70 (Ky. Ct. App. 2022).

7.Filing Required to Revive Action.

An application to revive an action must be filed within one (1) year after the death of a deceased party, and service within one (1) year is inadequate to revive an action. Osborne v. Kenacre Land Corp., 65 S.W.3d 534, 2001 Ky. App. LEXIS 50 (Ky. Ct. App. 2001).

Action that is abated by the death of a party cannot be stayed by the action of another statute, and because the abated action is not a “proceeding” unless it is revived, only upon revival can the stay be enforceable; because only upon revival is the limitation period tolled, thereby allowing the force of the stay to come into effect, the revival statute controls. Hardin County v. Wilkerson, 255 S.W.3d 923, 2008 Ky. LEXIS 151 ( Ky. 2008 ).

Executor’s federal substitution motion did not satisfy the Kentucky revival statute because (1) the revival statute did not solely give notice of a party’s death but let the executor succeed to the decedent’s litigant status, so the statute was not only a procedural rule, and (2) the rule did not deal with the same issues as the statute. Stone v. Dean Dairy Holdings, LLC, 2018 Ky. App. LEXIS 307 (Ky. Ct. App. Dec. 14, 2018).

8.Amended Petition.

An amended petition filed by the administrator of the deceased plaintiff may be considered an application to revive the action for the purpose of determining compliance with the time limitation. Greyhound Corp. v. Dowling, 334 S.W.2d 259, 1960 Ky. LEXIS 219 ( Ky. 1960 ) (decided under prior law).

9.Time Order Entered.

The time at which an order of revivor is entered is not material if the application for the order is filed within the one-year period. Greyhound Corp. v. Dowling, 334 S.W.2d 259, 1960 Ky. LEXIS 219 ( Ky. 1960 ) (decided under prior law).

10.Suit by Second Administrator.

A suit on the same cause of action by an administrator de bonis non is not barred by dismissal of an administrator’s suit for failure to revive. Hollon v. Weatherford's Adm'r, 259 Ky. 142 , 82 S.W.2d 208, 1935 Ky. LEXIS 278 ( Ky. 1935 ) (decided under prior law).

11.Waiver.

Where, in action seeking to establish titles to patented land, defendant died during pendency of action and an order was entered on motion of plaintiff directing a revivor of the proceedings against the executrix but at a subsequent term both parties appeared and proceeded to trial, without any objection for want of a formal entry of the revivor, the plaintiff on appeal could not complain that the action was not properly revived against the executrix of the deceased defendant. Biggs v. M'Ilvain's Ex'x, 10 Ky. 360 , 1821 Ky. LEXIS 145 ( Ky. 1821 ) (decided under prior law).

Where, in an action to enjoin an unpaid balance on a judgment obtained by the defendant in a previous action, the defendant died and his death was mentioned to the court by plaintiff’s attorney, and at next term of court the personal representative, without formal revivor, filed her answer without objection, upon appeal of the action it was too late to complain that there was no formal revivor of the suit against the personal representative. Moss v. Rowland, 66 Ky. 505 , 1868 Ky. LEXIS 12 ( Ky. 1868 ) (decided under prior law).

An appearance in an action without questioning the mode of procedure is a waiver of the right to have a formal revivor. Davie's Ex'r v. Louisville, 171 Ky. 663 , 188 S.W. 911, 1916 Ky. LEXIS 441 ( Ky. 1916 ).

Where a defendant died after the rendition of a judgment against him, and the personal representative voluntarily came into court and made a motion to set aside the judgment and then took an appeal from the judgment, and it was reversed and remanded for further proceedings in the trial court, the personal representative was a party to the further proceedings in the trial court and no formal revivor against him was necessary. Davie's Ex'r v. Louisville, 171 Ky. 663 , 188 S.W. 911, 1916 Ky. LEXIS 441 ( Ky. 1916 ) (decided under prior law).

Where the defendant took three depositions during the interim between the decedent’s death and the appointment of a personal representative, the defendants by such action did not waive or become estopped from asserting the right to have the personal representative’s subsequent action dismissed for failure to revive in time since the defendants had no right of dismissal then. Daniel v. Fourth & Market, Inc., 445 S.W.2d 699, 1968 Ky. LEXIS 138 ( Ky. 1968 ) (decided under prior law).

Cited:

Boggs v. Blue Diamond Coal Co., 497 F. Supp. 1105, 1980 U.S. Dist. LEXIS 13299 (E.D. Ky. 1980 ); Ratliff v. Oney, 735 S.W.2d 338, 1987 Ky. App. LEXIS 547 (Ky. Ct. App. 1987).

Notes to Unpublished Decisions

1.Death of Litigant.

Unpublished decision: Party may be estopped from asserting the right to a dismissal under KRS 395.278 . Appellant reasonably relied on appellee’s counsel’s failure to inform opposing counsel of appellee’s death and, therefore, appellant was entitled to revive the claim by substituting appellee’s estate as defendant. Jackson v. Harris, 2003 Ky. App. LEXIS 283 (Ky. Ct. App. Nov. 7, 2003), modified, 2004 Ky. App. LEXIS 19 (Ky. Ct. App. Jan. 23, 2004).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Catron, Wills, Probate and Real Property Law, 71 Ky. L.J. 333 (1982-83).

Northern Kentucky Law Review.

Bartlett, Civil Procedure, 21 N. Ky. L. Rev. 269 (1994).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Revival of Actions (Substitution of Parties), § 50.00.

Caldwell’s Kentucky Form Book, 5th Ed., Motion by Representative of Plaintiff to be Substituted, Form 51.26.

395.280. Successor of representative may be substituted in actions.

When any personal representative commences an action or is sued, and then dies, is removed or is superseded by another before the termination of the action, his successor may, by order of court, be substituted for the original plaintiff or defendant.

History. 3844.

NOTES TO DECISIONS

1.Revival in Name of Successor.

Where a personal representative institutes a suit and then dies, the action should be revived in the name of his successor. The action cannot be revived in the name of the personal representative of the personal representative. Robertson v. Robertson's Adm'r, 174 Ky. 836 , 192 S.W. 878, 1917 Ky. LEXIS 256 ( Ky. 1917 ).

2.Removal.

Where defendant’s administrator was removed pending the action and an administratrix de bonis non appointed, the plaintiff, on giving notice to the new administratrix, had the right to have her substituted as defendant, and the summons issued on the petition for revivor was sufficient notice. Martin v. Martin, 282 Ky. 411 , 138 S.W.2d 509, 1940 Ky. LEXIS 176 ( Ky. 1940 ).

3.Order Necessary.

Where the plaintiff moved to substitute the administratrix de bonis non as defendant in lieu of the original administrator, and no such order was made by the Circuit Court, the Court of Appeals could not direct the entry of judgment against the new administratrix. Martin v. Martin, 282 Ky. 411 , 138 S.W.2d 509, 1940 Ky. LEXIS 176 ( Ky. 1940 ).

4.Warning Order.

Where the administrator dies after filing a suit to sell the land to pay the creditors of the decedent’s estate, and a successor is appointed and moves the court to be substituted for the predecessor and it is granted, it is not necessary to have issued another warning order for nonresidents where the debts are more than the value of the land. Bowles v. Bowles, 230 Ky. 172 , 18 S.W.2d 989, 1929 Ky. LEXIS 54 ( Ky. 1929 ).

5.Wrongful Death.

An action by a father, as administrator of the estate of his child who was survived by no children, wife, nor mother, to recover for the wrongful death of the child can be revived in the name of the successor administrator upon the death of the father. Thomas' Adm'r v. Maysville Gas Co., 112 Ky. 569 , 66 S.W. 398, 23 Ky. L. Rptr. 1879 , 1902 Ky. LEXIS 198 ( Ky. 1902 ).

395.290. Extent of liability of representative.

No failure to plead or make defense and no plea or answer made by a personal representative shall render him liable for more than the amount of assets that come to his hands to be administered, but the judgment of the court shall render him liable only for the amount of assets in his hands unadministered.

History. 3866.

NOTES TO DECISIONS

1.Construction.

This section abrogates the common-law rule which held an administrator personally liable for a judgment if he failed to plead that the assets of the estate were fully administered. Miller's Adm'r v. Ewing, 163 Ky. 401 , 174 S.W. 22, 1915 Ky. LEXIS 275 ( Ky. 1915 ).

2.Extent of Liability.

The personal representatives of the directors of a corporation who are liable for negligence in its operation should be held liable only to the extent of the assets of the decedent’s estate in their hands unadministered. Anderson v. Akers, 9 F. Supp. 151, 1934 U.S. Dist. LEXIS 1175 (D. Ky. 1934 ).

Research References and Practice Aids

Cross-References.

Assignor for benefit of creditors, payment of debts due as personal representative, KRS 379.010 .

Contribution allowed to persons jointly liable for act or omission in trust capacity, KRS 412.050 .

Judgment sale bond, personal representative of obligee on may sue out execution against obligor, KRS 426.610 .

395.300. Successor may sue former representative.

An administrator de bonis non or any other successor appointed in the place of a personal representative who has resigned or has been removed or whose letters have been revoked, or who has ceased to act or has died, may maintain an action against the former personal representative and the sureties on the administration bond and against the predecessor’s real and personal representatives, for all damages or debts arising from the maladministration or omission of the predecessor.

History. 3846-1.

NOTES TO DECISIONS

1.Construction.

This section allows an administrator de bonis non to maintain an action against a former administrator for all damages arising from maladministration or omission of his predecessor, in addition to any funds wrongfully paid out or not accounted for. Schott v. Schott's Ex'r, 286 Ky. 208 , 149 S.W.2d 782, 1940 Ky. LEXIS 2 ( Ky. 1940 ).

2.Application.

This section has no application where the original representative is still acting. Schott v. Schott's Ex'r, 286 Ky. 208 , 149 S.W.2d 782, 1940 Ky. LEXIS 2 ( Ky. 1940 ).

3.Initiation of Suit.

The master commissioner, or the heirs of the decedent’s estate, do not have the capacity to sue the surety on the bond of the administrator. The administrator de bonis non is the proper party to sue the surety on the administrator’s bond. Fidelity & Deposit Co. v. Barrett, 271 Ky. 163 , 111 S.W.2d 631, 1937 Ky. LEXIS 217 ( Ky. 1937 ).

This section, which permitted successor representative to sue former representative for conversion of assets of estate, had corollary effect of preventing heirs or distributees from suing delinquent representative or his surety for devastavit unless, upon request, successor representative refused to do so. Peoples Nat'l Bank v. Guier, 284 Ky. 702 , 145 S.W.2d 1042, 1940 Ky. LEXIS 567 ( Ky. 1940 ).

4.Suit Against Recipients.

The words “or for all damages or debts arising from the maladministration or omission of the predecessor” do not authorize the administrator de bonis non to maintain an action against anyone who has wrongfully received property belonging to the estate, and could not authorize such actions because the title of the act was not sufficient to include such authorization. Gibbs v. Peoples Nat'l Bank, 278 Ky. 415 , 128 S.W.2d 958, 1939 Ky. LEXIS 457 ( Ky. 1939 ).

Successor to personal representative could not maintain suit to reclaim from the recipients money converted by the former personal representative. Peoples Nat'l Bank v. Guier, 284 Ky. 702 , 145 S.W.2d 1042, 1940 Ky. LEXIS 567 ( Ky. 1940 ).

5.Insolvency.

Where administrator is debtor to estate, sureties on his bond are not liable for his failure to pay his or to collect another’s debt, where the administrator throughout the administratorship and debtor were insolvent or unable to pay, or where failure to collect of third party is not due to lack of diligence. Cawood v. Cawood's Adm'x, 285 Ky. 201 , 147 S.W.2d 88, 1940 Ky. LEXIS 605 ( Ky. 1940 ).

395.310. Interest charged representative on assets.

A personal representative, after the expiration of two (2) years from the time he qualifies, shall be charged with interest on the surplus assets in his hands from that period, and before the expiration of two (2) years shall be charged with all interest realized on assets.

History. 3859.

NOTES TO DECISIONS

1.Application.

This section does not govern the time at which the personal representative may settle his accounts, or be sued to settle them. Holland v. Lowe, 101 Ky. 98 , 39 S.W. 834, 19 Ky. L. Rptr. 97 , 1897 Ky. LEXIS 157 ( Ky. 1897 ).

This section is only applicable to circumstances where the settlement is not due, or cause shown why the sums are not payable. Where the court orders an administrator to make a distribution and he fails to do so, he is liable for interest even though two years have not elapsed. Greenway's Adm'r v. Greenway, 266 Ky. 114 , 98 S.W.2d 283, 1936 Ky. LEXIS 608 ( Ky. 1936 ).

This section does not apply where a personal representative has, without legal right, paid a sum of money to itself before the expiration of two years from the date of its qualification as executor. Panke v. Louisville Trust Co., 303 Ky. 579 , 198 S.W.2d 313, 1946 Ky. LEXIS 905 ( Ky. 1946 ).

2.Surplus Assets.

After the expiration of two years, the personal representative is prima facie chargeable with interest on the “surplus” in his hands, and the burden is on him to show that by reason of circumstances beyond his control he was unable, in the exercise of ordinary care, to earn interest on the fund. Steel's Adm'r v. Lewis, 105 S.W. 1191, 32 Ky. L. Rptr. 439 (1907). See Howe v. Winn, 150 Ky. 667 , 150 S.W. 842, 1912 Ky. LEXIS 966 ( Ky. 1912 ); Farmers' Bank & Trust Co. v. Stanley, 190 Ky. 762 , 228 S.W. 691, 1921 Ky. LEXIS 513 ( Ky. 1921 ).

The surplus assets of the estate were determined by subtracting from the amount which the executor received all items for which he had properly been given credit as charges against the estate. Clay v. Eager, 444 S.W.2d 124, 1969 Ky. LEXIS 202 ( Ky. 1969 ), overruled in part, Ky. Bar Ass'n v. Calvert, 607 S.W.3d 700, 2020 Ky. LEXIS 285 ( Ky. 2020 ).

Where an executor should have been able to settle the estate completely within six months after September 1962, he was charged with interest at the rate of six per cent per annum from March 1, 1963, until paid on the surplus assets of the estate. Clay v. Eager, 444 S.W.2d 124, 1969 Ky. LEXIS 202 ( Ky. 1969 ), overruled in part, Ky. Bar Ass'n v. Calvert, 607 S.W.3d 700, 2020 Ky. LEXIS 285 ( Ky. 2020 ).

3.Liability for Interest.

Where a personal representative uses the property of the estate for his own benefit, he is liable for interest thereon, even though time for distribution has not arrived. Commonwealth use of Lynch v. Campbell, 241 Ky. 349 , 43 S.W.2d 994, 1931 Ky. LEXIS 69 ( Ky. 1931 ).

Where personal representative made improper distribution to heirs shortly after his qualification, widow was entitled to interest from time of qualification. Hall's Adm'r v. Hall, 285 Ky. 730 , 149 S.W.2d 24, 1941 Ky. LEXIS 459 ( Ky. 1941 ).

Where executor qualified in December 1951, sold the bulk of the estate property in February 1952, held about $77,000 six months after qualifying although the estate had few debts, and settled the estate on March 3, 1953, the executor was properly charged with interest on $60,000 from July 1952 to March 1953. Peoples State Bank & Trust Co. v. Hodgkin, 287 S.W.2d 425, 1956 Ky. LEXIS 458 ( Ky. 1956 ).

Although the general rule is that the administrator is charged with interest only after two years from the time he receives the funds, the rule is inapplicable to circumstances where the settlement was not due or other causes shown why the funds were not payable. Clay v. Eager, 444 S.W.2d 124, 1969 Ky. LEXIS 202 ( Ky. 1969 ), overruled in part, Ky. Bar Ass'n v. Calvert, 607 S.W.3d 700, 2020 Ky. LEXIS 285 ( Ky. 2020 ).

4.— Administrator Not Liable.

Where the personal representative brought a suit in due time to settle the estate, it was held error to charge him interest upon the estate in his hands in the absence of a showing that he made a profit out of it. Adams v. Bement, 96 Ky. 334 , 29 S.W. 22, 16 Ky. L. Rptr. 676 , 1894 Ky. LEXIS 132 ( Ky. 1894 ).

Where the distribution is postponed because the estate is involved in litigation, the administrator is not liable for any interest other than that received by him. Maynard v. Maynard's Adm'r, 251 Ky. 246 , 64 S.W.2d 567, 1933 Ky. LEXIS 834 ( Ky. 1933 ).

Executors who were paid two per cent interest on bank balance under same arrangement that testator had with bank were not chargeable with legal interest rate, where estate could not have been wound up in two years without loss, and administration of estate required large bank balances. King v. Kitchen's Ex'rs, 274 Ky. 157 , 118 S.W.2d 144, 1938 Ky. LEXIS 228 ( Ky. 1938 ).

Where the executor and successor as administrator de bonis non with will annexed never received or used any sum, or profited by reason of delayed distribution, it should not be charged with interest. Maynard's Adm'r v. Maynard, 285 Ky. 75 , 146 S.W.2d 343, 1940 Ky. LEXIS 597 ( Ky. 1940 ).

Cited:

Wilhelm v. Orlamuende’s Adm’x, 228 Ky. 719 , 15 S.W.2d 511, 1929 Ky. LEXIS 633 ( Ky. 1929 ); Farber’s Ex’r v. Farber, 285 Ky. 596 , 148 S.W.2d 732, 1940 Ky. LEXIS 609 ( Ky. 1940 ); Rison v. Shepherd, 299 Ky. 693 , 186 S.W.2d 648, 1945 Ky. LEXIS 490 ( Ky. 1945 ).

Research References and Practice Aids

Cross-References.

Legal investments, KRS Ch. 386.

Kentucky Bench & Bar.

Ratliff, Kentucky Probate — A Simple Overview, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 16.

395.320. Resignation of representative. [Repealed.]

Compiler’s Notes.

This section (3881) was repealed by Acts 1974, ch. 299, § 19.

395.325. Fiduciary resignation or disability — Settlement of accounts.

  1. If any fiduciary resigns or is removed, he shall upon the appointment of his successor settle his accounts.
  2. If any fiduciary becomes mentally disabled or dies, the personal representative of his estate shall upon the appointment of a successor fiduciary for the mentally disabled fiduciary or decedent settle for his decedent the accounts of the first decedent.

History. Enact. Acts 1970, ch. 257, § 4; 1982, ch. 141, § 109, effective July 1, 1982; 1982, ch. 277, § 13, effective July 15, 1982; 2014, ch. 25, § 114, effective July 15, 2014.

Compiler’s Notes.

Section 14 of Acts 1982, ch. 277 purported to amend this section as amended by § 122 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396, and therefore, the amendment by § 14 of Acts 1982, ch. 277 has not been made.

395.326. Nomination of successor trustee by testamentary trustee. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 329, § 1, effective June 17, 1978) was repealed by Acts 2014, ch. 25, § 118, effective July 15, 2014.

395.330. Acts prior to revocation of powers valid.

Where an order of administration is set aside or letters of administration revoked, or where any executor or administrator is removed, or the will under which he acted is declared invalid, all previous sales of personal estate made lawfully by the executor or administrator and with good faith on the part of the purchaser and all other lawful acts done by the executor or administrator, shall remain valid and effectual.

History. 3848.

NOTES TO DECISIONS

1.Settlement of Claim.

The settlement of a claim for the wrongful death of the decedent is a lawful act which the administrator may do, and it is binding even though the order appointing the administrator is set aside, where there is no fraud. McFarland's Adm'r v. Louisville & N. R. Co., 130 Ky. 172 , 113 S.W. 82, 1908 Ky. LEXIS 253 ( Ky. 1908 ).

2.Payment of Devise.

Where the executor is directed by the will to pay a certain devise and is ordered by the court to pay it, and it is paid, the fact that by an amended pleading filed nine years later the devise was held to be invalid, the executor having no notice of any intention to question the validity of the devise or payment of it, does not render the executor liable therefor. Trustees of Home for Poor Catholic Men v. Coleman, 122 Ky. 544 , 92 S.W. 342, 29 Ky. L. Rptr. 75 , 1906 Ky. LEXIS 75 ( Ky. 1906 ).

3.Administrator’s Appointment Contested.

Where one is appointed administrator with will annexed, and on that day a bill is filed contesting the validity of the will and summons is served upon him, there is no lapse of time during which the administrator could do any act under the will. CROW'S ADM'R v. CROW., 53 Ky. 383 , 1854 Ky. LEXIS 20 (Ky. Ct. App. 1854) (decided under prior law)

Cited:

Chastain v. McKinney, 203 F.2d 712, 1953 U.S. App. LEXIS 3424 (6th Cir. 1953), cert. denied, 346 U.S. 873, 74 S. Ct. 122, 98 L. Ed. 381, 1953 U.S. LEXIS 1572 (1953); Rabold v. Roberts, 444 S.W.2d 536, 1969 Ky. LEXIS 210 ( Ky. 1969 ).

395.340. Estate for life of another considered personal estate.

Estates held by a deceased person for life of another shall go to the personal representative of the deceased as assets in his hands, and, shall be applied and distributed as the personal estate.

History. 3861.

NOTES TO DECISIONS

1.Wife’s Interest.

Where decedent held estate only for the life of another, such estate went to his personal representative and decedent’s wife had no interest whatsoever in the estate, not even as dower or homestead. Clore v. Nichols, 199 Ky. 581 , 251 S.W. 846, 1923 Ky. LEXIS 897 ( Ky. 1923 ).

2.Estate to Heir of Deceased.

Where the testator devised his estate to his wife and son in equal portions with all to his son upon the death of the wife, but in the event of the death of the son before the mother, leaving a child, all the estate should go to the child upon the death of his wife, and the son died survived by a son, the estate held by the son is not such an estate as covered by this section, and the child of the son takes the estate held by his father. Wirth v. Wirth's Guardian, 100 S.W. 298, 30 Ky. L. Rptr. 960 (1907).

395.350. Emblements — When personalty and when real estate.

  1. All the emblements of the lands of a person dying after March 1 which are severed before the following December 31 shall be assets in the hands of his personal representative.
  2. All the emblements growing on the lands of the deceased on December 31 or at his death, if that happens after December 31 and before March 1, shall pass with the land to the heir, devisee, reversioner or remainderman.

History. 3862, 3863.

NOTES TO DECISIONS

1.Construction.

In enacting this section, the legislature did not intend to infringe upon the right of a citizen of the Commonwealth to dispose of his property in accordance with his will. Miller's Ex'x v. Miller, 310 Ky. 721 , 221 S.W.2d 654, 1949 Ky. LEXIS 1000 ( Ky. 1949 ).

2.Emblement.

Crops of clover and lespedeza sown by life tenant in spring of 1948 were “emblements” and, on her death in April 1949, went to her personal representative as a part of her estate. Gentry v. Alexander, 311 Ky. 344 , 224 S.W.2d 143, 1949 Ky. LEXIS 1131 ( Ky. 1949 ).

The basis distinction between emblements and other products of the soil is that the former are the result of the labor and initiative of the tenant, while the latter are spontaneously produced by nature. Gentry v. Alexander, 311 Ky. 344 , 224 S.W.2d 143, 1949 Ky. LEXIS 1131 ( Ky. 1949 ).

The fact that a crop may not require any cultivation after having been sown does not prevent its being an emblement of the land. Gentry v. Alexander, 311 Ky. 344 , 224 S.W.2d 143, 1949 Ky. LEXIS 1131 ( Ky. 1949 ).

To be an emblement, it is not required that a crop be severed within a year of its sowing. Gentry v. Alexander, 311 Ky. 344 , 224 S.W.2d 143, 1949 Ky. LEXIS 1131 ( Ky. 1949 ).

To be classed as emblements and to become part of the estate of a life tenant, crops which must be placed in the ground each year must have been placed in the ground before the event which ends the estate for life. Gentry v. Alexander, 311 Ky. 344 , 224 S.W.2d 143, 1949 Ky. LEXIS 1131 ( Ky. 1949 ).

3.Assets in Hands of Personal Representative.

Where the deceased dies after March 1, the growing crops are assets in the hands of the personal representative. Clore's Adm'r v. Clore, 215 Ky. 532 , 284 S.W. 385, 1926 Ky. LEXIS 648 ( Ky. 1926 ).

4.— Distribution.

Growing crops are not considered a part of the corpus of the personal estate for the purpose of distribution. Miller's Ex'x v. Miller, 310 Ky. 721 , 221 S.W.2d 654, 1949 Ky. LEXIS 1000 ( Ky. 1949 ).

5.Seed Beds.

Where plants are growing in a seed bed, they have not been “placed in the ground” so as to make the crop grown from them emblements but the plants themselves are personalty belonging to the estate of the life tenant. Gentry v. Alexander, 311 Ky. 344 , 224 S.W.2d 143, 1949 Ky. LEXIS 1131 ( Ky. 1949 ).

395.360. Apportionment of rents.

When a person who has a freehold or an uncertain interest in land rents out the land and dies before the rent becomes due, the rent of the land shall be apportioned between the personal representatives of the deceased and the person who succeeds to the land as heir, personal representative, devisee or person in reversion or remainder, unless, in the case of a devisee, the will otherwise directs.

History. 3865.

NOTES TO DECISIONS

1.Apportionment of Rents.

A tenant for life rented a field to be cultivated in wheat. He and the lessee were to furnish one half each of the seed and share equally in the yield. The life tenant died during the year, and it was held that after deducting the value of the wheat furnished by the life tenant, the remainder of the crop should be apportioned between the remainderman and the representative of the life tenant. Redman v. Bedford, 3 Ky. L. Rptr. 511 (1882) (decided under prior law).

Where one dies possessed of land which he had rented out under a lease, his personal representative is entitled to the rents that accrued prior to his death, but rents which become due after his death must be apportioned among those who would be entitled to take the real estate itself at the death of the owner and in the same proportion. Anderson v. Richards' Ex'rs, 99 Ky. 661 , 37 S.W. 62, 18 Ky. L. Rptr. 455 , 1896 Ky. LEXIS 124 ( Ky. 1896 ). See Eastwood v. Sisk, 125 Ky. 841 , 102 S.W. 828, 31 Ky. L. Rptr. 419 , 1907 Ky. LEXIS 342 ( Ky. 1907 ); Kelly's Ex'r v. Pettus, 145 Ky. 250 , 140 S.W. 189, 1911 Ky. LEXIS 826 ( Ky. 1911 ).

2.Rent Passes as Personal Property.

Where the testator devises all of his personal property absolutely to his wife and a life estate in land, and then rents the land and takes notes therefor and dies, the notes pass to his widow as a part of his personal estate under his will. Penn's Ex'r v. Penn's Ex'r, 120 Ky. 557 , 87 S.W. 306, 27 Ky. L. Rptr. 946 , 1905 Ky. LEXIS 134 ( Ky. 1905 ).

3.Heirs Entitled to Rent.

The testator devised certain land to be sold to pay his debts. He devised other land to his heirs, which land he had rented, the rent being payable every month. The first land devised was not sufficient to pay the debts, and a suit was instituted by the executor to sell the land devised to the heirs to pay the debts. It was held that the heirs were entitled to all the rents until they had been divested of their title by a judgment of the court. Ball v. First Nat'l Bank, 80 Ky. 501 , 4 Ky. L. Rptr. 400 , 1882 Ky. LEXIS 94 (Ky. Ct. App. 1882) (decided under prior law)

Research References and Practice Aids

Cross-References.

Distress, personal representative to have same right of as decedent, KRS 383.010 .

Life tenant, lessee of to hold until end of year, if life tenant dies after March 1, KRS 383.190 .

Pension due at pensioner’s death to be paid to administrator, KRS 206.090 .

395.370. Tombstone allowed as funeral expense.

The personal representative or heirs may cause to be erected over the grave of the deceased an appropriate memorial tablet, the cost of which shall be allowed as funeral expenses on the settlement of the estate.

History. 3885.

NOTES TO DECISIONS

1.Widow.

The widow of the decedent is not an “heir,” and hence not authorized by this section to cause to be erected over the grave of the deceased husband a monument, and collect therefor from the personal representative of his estate. Higginbothom v. Higginbothom, 177 Ky. 271 , 197 S.W. 627, 1917 Ky. LEXIS 558 ( Ky. 1917 ) ( Ky. 1917 ).

2.— Advances Money.

There being no personal representative, a widow who advances money for purchase of monument and later qualifies as personal representative is deemed to have advanced the money for the benefit of the estate, and is entitled to reasonable reimbursement. Fitzpatrick's Adm'r v. Fitzpatrick, 288 Ky. 53 , 155 S.W.2d 463, 1941 Ky. LEXIS 48 ( Ky. 1941 ).

3.Unreasonable Expense.

When estate was worth $1,840, expenditure of more than $100 for a monument was unreasonable. Fitzpatrick's Adm'r v. Fitzpatrick, 288 Ky. 53 , 155 S.W.2d 463, 1941 Ky. LEXIS 48 ( Ky. 1941 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Probate Procedures Dispensing with Administration, § 232.00.

395.380. Public administrator and guardian.

  1. The District Court of each county shall appoint a discreet, fit person to act as administrator of decedents’ estates of which there is no personal representative, and as guardian of orphans who have no guardian.
  2. He shall serve at the discretion of the District Court.
  3. He shall be sworn and execute bond with good surety to the state for the faithful discharge of his duties, and when so sworn with bond so executed, shall be accepted by the court in every estate in which the public administrator is appointed without the necessity of additional surety.

History. 3903, 3904: amend. Acts 1968, ch. 151, § 1; 1976 (Ex. Sess.), ch. 14, § 387, effective January 2, 1978; 1982, ch. 277, § 15, effective July 15, 1982.

NOTES TO DECISIONS

1.Person.

The word “person” as used in this section includes a corporation, and hence a corporation may act as public administrator. Louisville & N. R. Co. v. Herndon's Adm'r, 126 Ky. 589 , 104 S.W. 732, 31 Ky. L. Rptr. 1059 , 1907 Ky. LEXIS 89 ( Ky. 1907 ).

2.Clerical Oversight.

Where one has been appointed public administrator and executes bond as such and the clerk by oversight failed to also make him guardian, he is qualified to act as guardian nevertheless, as one person must hold both of these offices. Newman v. Flowers' Guardian, 134 Ky. 557 , 121 S.W. 652, 1909 Ky. LEXIS 433 ( Ky. 1909 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Order Appointing Public Administrator and Guardian, Form 234.16.

Caldwell’s Kentucky Form Book, 5th Ed., Order Confiding Estate to Public Administrator, Form 234.07.

395.390. Public administrator and guardian to act, when.

  1. The District Court of a county which has a public administrator and guardian shall, after the expiration of sixty (60) days from the death of the decedent, order the public administrator and guardian to administer the estate of the decedent where the surviving spouse and heirs waive their right to be appointed, or if the surviving spouse does not nominate a suitable administrator, or in the event any of the persons designated in KRS 395.040 are unable, or found to be incapable of handling or managing the estate, or if from any other cause there is no personal representative. If there is no public administrator and guardian, the court shall order the sheriff to administer the estate.
  2. The District Court shall also confide to the public administrator and guardian the care and control of the persons and estates of all minors when it appears that a minor has no testamentary guardian and no one will apply for appointment, or serve, as guardian.

History. 3905, 3907: amend. Acts 1968, ch. 151, § 2; 1976 (Ex. Sess.), ch. 14, § 388, effective January 2, 1978; 1982, ch. 277, § 16, effective July 15, 1982.

NOTES TO DECISIONS

1.Public Administrator.

The county (now District) Court has no jurisdiction to place the estate of a deceased person in the hands of the public administrator until after the lapse of the three months from the death, and then only in the event no other person has applied for administration. Underwood v. Underwood's Adm'r, 111 Ky. 966 , 65 S.W. 130, 23 Ky. L. Rptr. 1287 , 1901 Ky. LEXIS 280 ( Ky. 1901 ) (decision prior to 1968 amendment).

The order appointing the public administrator and guardian as guardian for the estate of a minor is not void because it does not show the jurisdictional facts upon its face. The burden is upon one who attacks the order. Paslick v. Shay, 148 Ky. 642 , 147 S.W. 369, 1912 Ky. LEXIS 504 ( Ky. 1912 ).

The county (now District) Court had no power to appoint a public administrator before the expiration of three months after the testator’s death even when the widow requested the appointment. Jackson's Adm'r v. Asher Coal Co., 153 Ky. 547 , 156 S.W. 136, 1913 Ky. LEXIS 890 ( Ky. 1913 ) (decision prior to 1968 amendment).

In action brought by sheriff, appointed to administer estate under this section, to sell realty to pay decedent’s debts and to settle estate, misdescription of self as curator, later corrected in amended petition, was not prejudicial to rights of infant defendants. Pierce v. Marrs, 153 Ky. 748 , 156 S.W. 404, 1913 Ky. LEXIS 917 ( Ky. 1913 ).

2.— Premature Appointment.

Where the public administrator is appointed administrator of the decedent’s estate before the lapse of three months and institutes a suit to recover for the wrongful death of the deceased, and then after the lapse of one year is appointed administrator and attempts to amend his petition, the statute of limitations has operated to cut off the right to sue. Fentzka's Adm'r v. Warwick Const. Co., 162 Ky. 580 , 172 S.W. 1060, 1915 Ky. LEXIS 130 ( Ky. 1915 ) (decision prior to 1968 amendment).

Where the public administrator was appointed administrator of the decedent’s estate before the lapse of the three months’ period and, on the trial of the case and while time still remained to correct the error, his appointment was not questioned but actually admitted in court, it was too late to raise the question upon appeal. Bannon v. Fox, 199 Ky. 262 , 250 S.W. 966, 1923 Ky. LEXIS 808 ( Ky. 1923 ) (decision prior to 1968 amendment).

3.— Resignation of Public Administrator.

Where the public administrator resigns his office, he remains as the administrator of every estate committed to his hands prior to his resignation. Olsen's Adm'r v. Rich, 79 Ky. 244 , 2 Ky. L. Rptr. 257 , 1881 Ky. LEXIS 6 (Ky. Ct. App. 1881) (decided under prior law).

Cited:

Paslick v. Shay, 148 Ky. 642 , 147 S.W. 369, 1912 Ky. LEXIS 504 ( Ky. 1912 ); Commonwealth v. Cabinet for Human Resources, 686 S.W.2d 465, 1984 Ky. App. LEXIS 629 (Ky. Ct. App. 1984).

Opinions of Attorney General.

In a county where there is no public administrator, a sheriff cannot legally refuse to act as administrator of an estate. OAG 63-453 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint by Corporation as Public Administrator, Form 234.17.

395.400. Functions of public administrator and sheriff.

The public administrator and guardian or sheriff shall, by virtue of his office and the order of court, be the administrator or administrator de bonis non, or if there is a will, administrator with the will annexed, and shall have all the rights and powers and be subjected to the same liabilities and be governed by the same laws prescribed for administrators and guardians. If the sheriff is acting, his powers, rights, duties and liabilities shall not expire with his office of sheriff. The court may, however, at any time, set aside the order entrusting the estate to the public administrator and guardian or sheriff and allow an executor or administrator to qualify.

History. 3906, 3908.

Opinions of Attorney General.

The surety bond of a sheriff who was in office at the time of his appointment as administrator does not expire with his term because his statutory duties and liabilities are specifically extended by statute. OAG 63-599 .

Research References and Practice Aids

Kentucky Law Journal.

Department of Law, Law Enforcement in Kentucky, 52 Ky. L.J. 1 (1963).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint by Corporation as Public Administrator, Form 234.17.

Caldwell’s Kentucky Form Book, 5th Ed., Order Confiding Estate to Public Administrator, Form 234.07.

395.410. Curator — Grounds for appointment — Bond.

  1. During the contest about the probate of a will, or when the court for any valid cause is delayed in granting letters testamentary or administration, it may appoint a curator to collect and preserve the estate of the decedent until probate of the will is granted, or until the cause for which the order was made is removed.
  2. When any resident of this state or person owning property in this state has been absent from his last known place of residence for a period of one (1) year and is not known to have been living during that time, the District Court of any county in which a personal representative could be appointed for that person’s estate if deceased, may appoint a curator to collect and preserve the estate of that absent person.
  3. The court shall take bond with good surety from the person appointed curator for the full and faithful performance of the trust confided in him.

History. 3901, 3902a-1: amend. Acts 1976 (Ex. Sess.), ch. 14, § 389, effective January 2, 1978.

NOTES TO DECISIONS

1.Will Admitted to Probate.

When probate to the will has been granted, the court cannot arbitrarily refuse to permit the named executors to qualify as executors on the ground that the validity of the will is being contested and name a curator instead. Worthington v. Worthington's Ex'rs, 35 S.W. 113, 18 Ky. L. Rptr. 62 (1896).

When the probation of a will is contested in the county (now District) Court, the court may appoint a curator to take possession of the estate of the deceased, but the duties of the curator cease when the will is admitted to probate and an administrator with will annexed is appointed, except to make an accounting and turn the property of the estate over to the administrator. King's Adm'r v. Rose, 100 Ky. 393 , 38 S.W. 844, 18 Ky. L. Rptr. 862 , 1897 Ky. LEXIS 18 ( Ky. 1897 ).

2.Administrator.

Where one who has the right to be appointed administrator makes application for such an appointment, the court has no power to delay the matter and appoint a curator. Hood v. Higgins' Curator, 225 Ky. 718 , 9 S.W.2d 1078, 1928 Ky. LEXIS 860 ( Ky. 1928 ).

A curator may be appointed only if there is some good reason why an administrator cannot be appointed for the estate. Holt v. Kellar, 319 S.W.2d 45, 1958 Ky. LEXIS 162 ( Ky. 1958 ).

3.Circuit Court’s Jurisdiction.

The Circuit Court has no power to appoint a curator for the estate. Couchman v. Lisle, 33 S.W. 940, 17 Ky. L. Rptr. 1295 (1896).

Research References and Practice Aids

Cross-References.

Guardians, committees, curators of convicts, KRS Ch. 387.

Oaths and bonds, KRS Ch. 62.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Day Inventory or Supplemental Inventory (AOC 855), Form 15.03.

Caldwell’s Kentucky Form Book, 5th Ed., Procedural Context for Curators, § 15.00.

Caldwell’s Kentucky Form Book, 5th Ed., Settlement Ledger (AOC 846), Form 15.04.

395.420. Functions of curator.

  1. A curator appointed under subsection (1) of KRS 395.410 shall collect and safely keep the estate of the decedent, and make and return to court, within sixty (60) days, a full and complete inventory of the estate and deliver up the estate, when required, to the executor or administrator. He may pay debts, sue and be sued and sell perishable and other goods.
  2. A curator appointed under subsection (2) of KRS 395.410 shall collect and safely keep the estate of an absent person; make and return to the court, within sixty (60) days, a full and complete inventory of the estate and deliver up the estate, including the income from the estate, when required, to the absent person upon his return, or to the executor or administrator, when one is appointed. He may pay debts, sue and be sued, invest or reinvest any funds coming into his hands and sell perishable and other goods.

History. 3902, 3902a-4: amend. Acts 1976, ch. 218, § 22; 1980, ch. 259, § 23, effective July 15, 1980.

NOTES TO DECISIONS

1.Suit Against for Debt.

The same proceedings may be had against a curator for the collection of a debt owed by the decedent’s estate as are authorized against an administrator or executor. Moran v. Hammer, 109 Ky. 333 , 58 S.W. 988, 22 Ky. L. Rptr. 831 , 1900 Ky. LEXIS 208 ( Ky. 1900 ).

2.Sale of Real Estate.

The primary duty of the curator is to preserve the estate, and he has no power to sell the real estate or a part thereof even though power is given to the executor in the will to sell it. Ellis v. Wren, 84 Ky. 254 , 1 S.W. 440, 8 Ky. L. Rptr. 285 , 1886 Ky. LEXIS 62 ( Ky. 1886 ) (decided under prior law).

Research References and Practice Aids

Cross-References.

Convicts, functions of curator for, KRS 387.290 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Day Inventory or Supplemental Inventory (AOC 855), Form 15.03.

Caldwell’s Kentucky Form Book, 5th Ed., Settlement Ledger (AOC 846), Form 15.04.

395.430. Application for curator for absent person — Notice.

  1. Before any curator is appointed for an absent person under subsection (2) of KRS 395.410 , a written application requesting the appointment shall be filed with the District Court Clerk. The application shall be verified and shall recite the fact of absence, the last known address of the absent person and the presence of property within this state or other ground requiring the appointment of a curator for the protection of the property or rights of the absent person. The application may be made by any relative, creditor or debtor of the absent person, or by any person in possession of or interested in any property or rights of the absent person.
  2. Upon the filing with the District Court Clerk of any such application, the clerk shall send by United States certified mail, return receipt requested a letter addressed to the absent person at the last known address as given in the application, stating that such application has been filed. The clerk shall publish pursuant to KRS Chapter 424 a notice to the effect that an application for the appointment of a curator has been made.

History. 3902a-2, 3902a-3: amend. Acts 1966, ch. 239, § 224; 1974, ch. 315, § 85; 1976 (Ex. Sess.), ch. 14, § 390, effective January 2, 1978; 1980, ch. 114, § 103, effective July 15, 1980.

Research References and Practice Aids

Cross-References.

Death presumed after person has been absent for seven years, KRS 422.130 .

395.440. Appeal from order appointing curator.

  1. An appeal from an order appointing a curator to collect and preserve the estate of an absent person may be taken as in the case of an administrator.
  2. An appeal from any order appointing a curator under KRS 395.410 shall not suspend the powers of the curator.

History. 3901, 3902a-1.

Research References and Practice Aids

Cross-References.

Appeal to Circuit Court from order admitting will to record, KRS 394.250 .

395.450. Jurisdiction to dispense with administration.

The District Court that has jurisdiction to grant administration of the estate of a person dying intestate shall have jurisdiction of proceedings to dispense with administration.

History. 3897-6: amend. Acts 1968, ch. 200, § 8; 1976 (Ex. Sess.), ch. 14, § 391, effective January 2, 1978.

NOTES TO DECISIONS

Cited:

Broom v. Klein, 309 Ky. 224 , 217 S.W.2d 206, 1949 Ky. LEXIS 660 ( Ky. 1949 ).

395.455. Transfer of assets without administration.

  1. Where the exemption of the surviving spouse alone, or together with preferred claims paid by a widow or by the widower where the wife’s estate is legally liable for payment, equals or exceeds the amount of probatable assets, the court may order that administration of the estate be dispensed with and such assets be transferred to the surviving spouse or to a person designated by such surviving spouse to receive all or part of such assets. The court may so order in both testate and intestate estates and without requiring the renunciation of a will or the giving of bond.
  2. If the court is satisfied that no probatable estate will pass through the hands of the personal representative, it may order that no letters of administration be issued and in the case of a testate estate that the will be probated only.
  3. Where a surviving spouse has waived his or her right to the exemption accorded by law in favor of a person who has paid preferred claims in an amount equalling or exceeding the amount of probatable assets or who is legally entitled to such payment, or where there is no surviving spouse and such person has made such payment or is legally entitled thereto, the court may order that the administration of the estate be dispensed with and such assets transferred to such person. The court may so order without requiring the giving of bond.
  4. For purpose of this section, the exemption of the surviving spouse is such exemption as has been created by KRS 391.030 and preferred claims are those listed in KRS 396.095 and in the order thereof.

History. Enact. Acts 1974, ch. 299, § 10; 1982, ch. 277, § 17, effective July 15, 1982; 1988, ch. 90, § 29, effective July 15, 1988.

Opinions of Attorney General.

Real or personal property held in joint tenancy with right of survivorship is not a “probatable asset” and decedent’s one half interest should not be listed on petition for letters of administration, on the inventory filed with the county court, or accounted for in the final settlement filed by the administrator or administratrix unless the personal representative is chargeable with the real estate under KRS 140.050 , 395.220 or 395.515 . OAG 75-200 .

Research References and Practice Aids

Kentucky Law Journal.

Bratt, Family Protection Under Kentucky’s Inheritance Laws: Is the Family Really Protected? 76 Ky. L.J. 387 (1987-88).

Northern Kentucky Law Review.

Schneider, Recommendations for Improving Kentucky’s Inheritance Laws, 22 N. Ky. L. Rev. 317 (1995).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Probate Procedures Dispensing with Administration, § 232.00.

395.460. Dispensing with administration of small estates. [Repealed.]

Compiler’s Notes.

This section (3897-1: amend. Acts 1970, ch. 222, § 1; 1972, ch. 168, § 16) was repealed by Acts 1974, ch. 299, § 19.

395.470. Dispensing with administration by agreement.

  1. Administration of the estate of a person dying intestate may be dispensed with by agreement if there are no debts owing by the estate; all persons beneficially entitled to the personal estate have agreed in writing that there shall be no administration; and either there are no claims or demands due the estate, or the written agreement to dispense with administration designates a trustee with power to collect claims and demands.
  2. The written agreement provided in subsection (1) shall be acknowledged by the parties and filed in the District Court together with the motion of the parties for an order dispensing with administration. If the court is satisfied by affidavit or otherwise that the conditions prescribed in subsection (1) exist, it shall enter an order dispensing with administration. If the written agreement of the beneficiaries designates a trustee to collect claims or demands, the order shall confirm the designation and the person so designated shall have the same right to sue for and collect claims and demands that an administrator has.
  3. The District Court shall be satisfied that provision has been made for the state inheritance tax and the United States estate tax.
  4. The persons applying for an order dispensing with administration shall advertise for creditors of the intestate to appear and present their claims to some person at the county seat. The person and place shall be designated in the advertisement. The advertisement shall also give notice when, where and by whom the order dispensing with administration will be applied for. The advertisement shall be posted at the courthouse door for six (6) weeks, and published pursuant to KRS Chapter 424. The order dispensing with administration shall not be granted until the persons applying for the order file in the District Court the affidavit of one (1) of them showing that advertisement for creditors has been made.
  5. The persons applying for the order dispensing with administration shall, before the order is entered, give bond with surety in the amount of the personal estate for the benefit of any creditors who, within six (6) months from the order dispensing with administration, appear and file their claims with the court clerk. This bond shall be approved by the District Court and shall run to the state for the benefit of those creditors and be conditioned to be void if none of them files his claim with the clerk within six (6) months from the date of the order dispensing with administration.

History. 3897-2: amend. Acts 1966, ch. 239, § 225; 1976 (Ex. Sess.), ch. 14, § 392, effective January 2, 1978; 1982, ch. 277, § 18, effective July 15, 1982.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Probate Procedures Dispensing with Administration, § 232.00.

395.480. Consent of persons under disability.

If any person beneficially interested in an estate is not sui juris, consent for that person to the written agreement provided by subsection (1) of KRS 395.470 may be given by his guardian, curator or conservator. In the case of a prisoner otherwise sui juris, consent may be given by him personally instead of by his curator if it is acknowledged before the superintendent or keeper of the prison and the superintendent or keeper certifies that, in his opinion, the prisoner gave his consent freely. If any person not sui juris is beneficially interested, a trustee appointed under subsection (2) of KRS 395.470 to collect claims and demands shall not act until he has given bond to account for the share of that person and the bond has been approved by the District Court.

History. 3897-3: amend. Acts 1976 (Ex. Sess.), ch. 14, § 393, effective January 2, 1978; 1982, ch. 141, § 110, effective July 1, 1982.

Compiler’s Notes.

This section was amended by § 123 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

395.490. Procedure when administration already granted.

If administration or letters testamentary have been granted before application for an order dispensing with administration, the court shall not make such an order except upon notice to the personal representative and opportunity for him to be heard, nor until the costs of the administration have been paid and the accounts of the personal representative settled. If the order is then entered, the administration or letters testamentary shall be ipso facto revoked.

History. 3897-5.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Probate Procedures Dispensing with Administration, § 232.00.

395.500. Order may be set aside.

An order dispensing with administration pursuant to KRS 395.470 may be set aside at any time within one (1) year from the order dispensing with administration under KRS 395.470 upon motion of any person who satisfies the court by prima facie proof that he has a just and unsatisfied claim or demand against the estate.

History. 3897-4: amend. Acts 1982, ch. 277, § 19, effective July 15, 1982.

NOTES TO DECISIONS

1.Fake Widow.

Under this section, order dispensing with administration of decedent’s estate and awarding automobile to widow as her exempt portion under KRS 391.030 could be set aside by the court at any time within five (now one) years, on motion of heir alleging that person who had claimed to be widow actually was not decedent’s widow. Broom v. Klein, 309 Ky. 224 , 217 S.W.2d 206, 1949 Ky. LEXIS 660 ( Ky. 1949 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Catron, Wills, Probate and Real Property Law, 71 Ky. L.J. 333 (1982-83).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Probate Procedures Dispensing with Administration, § 232.00.

395.510. Persons who may bring actions for settlement of estates — Parties.

  1. A representative, legatee, distributee or creditor of a deceased person may bring an action in circuit court for the settlement of his estate provided that no such suit shall be brought by any of the parties named except the personal representative until the expiration of six (6) months after the qualification of such representative.
  2. The representatives of the decedent, and all persons having a lien upon or an interest in the property left by the decedent, or any part thereof, and the creditors of the decedent, so far as known to the plaintiff, must be parties to the action as plaintiffs or defendants.

History. C.C. 428: amend. Acts 1918, ch. 155; trans. Acts 1952, ch. 84, § 1; 1976 (Ex. Sess.), ch. 14, § 394, effective January 2, 1978.

NOTES TO DECISIONS

1.Purpose.

The purpose of this section is to afford the personal representative a reasonable time to collect the assets and ascertain and pay claims against the estate. Hambrick v. Smith, 231 Ky. 423 , 21 S.W.2d 658, 1929 Ky. LEXIS 292 ( Ky. 1929 ). See Courtney v. Morgan, 288 Ky. 342 , 156 S.W.2d 175, 1941 Ky. LEXIS 109 ( Ky. 1941 ).

One of the purposes of a settlement suit is the foreclosure of all liens on the property of the estate. Young v. United States, 355 S.W.2d 144, 1961 Ky. LEXIS 15 ( Ky. 1961 ).

2.Subject Matter Jurisdiction.

In an action to settle a probate estate, the Circuit Court alone had subject matter jurisdiction over all the contested issues presented in the case, and absent any non-contested issues, there was nothing over which the District Court retained any authority to act. Hale v. Moore, 289 S.W.3d 567, 2008 Ky. App. LEXIS 5 (Ky. Ct. App. 2008).

While the circuit court described the sisters’ claims as alleging mismanagement and fraud, the claims alleging that the personal representative and other family members owe money to the Estate satisfied the statute’s requirement as there appeared to be a genuine issue as to what constituted a correct and lawful settlement of the Estate and/or a correct and lawful distribution of the assets; this action, an adversarial proceeding, fell within the bounds of the statutes, and having concluded that the Jefferson Circuit Court had subject-matter jurisdiction of the sisters’ claims, a first-class writ was not available to the representative. Goff v. Edwards, 2022 Ky. LEXIS 295 (Ky. Sept. 22, 2022).

3.Representative.

The term “representative” as used in this section is not confined to “personal representative” or fiduciary of a deceased person. The term includes both personal and real representatives and, since heirs are real representatives, they can maintain action as a settlement suit. Auxier v. Auxier, 182 Ky. 588 , 206 S.W. 789, 1918 Ky. LEXIS 402 ( Ky. 1918 ).

4.Action for Settlement.

Where court found that decedent was without personal property and without debts, except the statutory claim of Central Lunatic Asylum, there was not the slightest necessity for an administrator of deceased’s estate to file suit to settle the estate. Holburn v. Pfanmiller's Adm'r, 114 Ky. 831 , 71 S.W. 940, 24 Ky. L. Rptr. 1613 , 1903 Ky. LEXIS 47 ( Ky. 1903 ).

Purpose of an action to settle an estate is to make an equitable distribution of the entire estate of decedent or testator among the creditors, heirs, devisees, and legatees who are parties thereto in any manner provided by law, according to their claims and interests as established by proper allegations and proof. Collett v. Helton, 264 Ky. 214 , 94 S.W.2d 603, 1936 Ky. LEXIS 296 ( Ky. 1936 ).

Action by assignee under life insurance policy for declaration of rights, brought against insurer and the administrator of insured’s estate, is not an action for settlement of estate under provisions of this section, nor is it within prohibition of KRS 395.270 . Arrowood v. Duff, 287 Ky. 107 , 152 S.W.2d 291, 1941 Ky. LEXIS 507 ( Ky. 1941 ).

In suit by beneficiary against executor charging mismanagement, neglect, and breach of fiduciary duties, and seeking enforcement of testamentary trust, it was error for Circuit Court to dismiss on grounds it lacked jurisdiction, since such court did have subject matter jurisdiction notwithstanding original jurisdiction of county (now District) Court to probate will and appoint executor. Myers v. State Bank & Trust Co., 307 S.W.2d 933, 1957 Ky. LEXIS 130 ( Ky. 1957 ).

The trial court erroneously allowed suit by surviving son, who was administrator of mother’s estate and coadministrator of father’s estate, to continue despite the failure to name himself as an heir and his brother as the coadministrator with the will annexed of their father’s estate. White v. White, 883 S.W.2d 502, 1994 Ky. App. LEXIS 103 (Ky. Ct. App. 1994).

Daughter’s claim that a mother breached the mother’s duty of utmost good faith as a father’s attorney-in-fact failed because the daughter brought the claim in circuit court when district court had exclusive jurisdiction, in which the daughter asserted no claim within the statutory time period. Dickson v. Shook, 2019 Ky. App. LEXIS 44 (Ky. Ct. App. Mar. 29, 2019, sub. op., 2019 Ky. App. Unpub. LEXIS 909 (Ky. Ct. App. Mar. 29, 2019).

5.— Widow.

Widow is a distributee of personal estate of deceased husband by KRS 391.030 and KRS 392.020 and, as such, authorized by this section to bring an action for settlement of the estate. Allen v. Foth, 210 Ky. 343 , 275 S.W. 804, 1925 Ky. LEXIS 671 ( Ky. 1925 ).

A widow is a distributee of a deceased person within the meaning of this section. Bowles v. Bowles' Adm'x, 211 Ky. 250 , 277 S.W. 260, 1925 Ky. LEXIS 857 ( Ky. 1925 ).

The widow is a distributee of the estate and receives all the personal property that comes to her from the estate as such distributee and, though not an heir, is authorized to bring an action for the settlement of the estate under this section. Carpenter v. Wilhoite's Adm'x, 213 Ky. 75 , 280 S.W. 481, 1926 Ky. LEXIS 453 ( Ky. 1926 ).

6.— Creditors.

The right to bring an action to settle a decedent’s estate is expressly given a creditor by this section and that right is not made conditional upon compliance by the creditor with the terms of statute to recover personal judgment against the personal representative. Huffman v. Moore's Adm'r, 101 Ky. 288 , 41 S.W. 292, 19 Ky. L. Rptr. 461 , 1897 Ky. LEXIS 207 ( Ky. 1897 ).

Attorneys properly employed by administrator who render services in administration of the estate for which they have not been compensated are creditors of estate within meaning of statute and may bring action for settlement of estate and sale of realty. Sims v. Birdsong's Adm'r, 50 S.W. 993, 21 Ky. L. Rptr. 75 (1899).

If these provisions are complied with, the judgment is final and binding, and if a creditor does not appear and file claim it is lost, unless he can recover against legatees and distributees to the extent of estate received by them. Hill v. Mayes, 117 Ky. 877 , 79 S.W. 276, 25 Ky. L. Rptr. 2023 , 1904 Ky. LEXIS 257 ( Ky. 1904 ).

Where will provided for partial settlement with court after one year and final settlement after two years thereby fixing time for settlement different from code and statutes, such provision in will would not be enforceable as against rights of creditors, but effectively fixes time for settlement and distribution among devisees. Linthecum v. Vowel's Ex'r, 118 Ky. 338 , 80 S.W. 1090, 26 Ky. L. Rptr. 221 , 1904 Ky. LEXIS 34 ( Ky. 1904 ).

In action by creditor of estate for settlement thereof, since creditor’s claim must be properly proved, filed with, and allowed by the commissioner, it was unnecessary that payment of claim be demanded of administrator before institution of action. Crane & Breed Mfg. Co. v. Stagg's Adm'r, 135 Ky. 428 , 122 S.W. 225, 1909 Ky. LEXIS 306 ( Ky. 1909 ).

A creditor, as well as a personal representative, may bring an action to obtain settlement and distribution of an estate. Benge's Adm'r v. Creech, 163 Ky. 810 , 174 S.W. 517, 1915 Ky. LEXIS 306 ( Ky. 1915 ).

Where widow was held to be a creditor of decedent and more than six months had elapsed since the qualification of the personal representative, she had right to bring an action for the settlement of the estate, and for a sale of the real estate on the ground that the personal property was not sufficient to pay his debts. Oster's Ex'r v. Ohlman, 187 Ky. 341 , 219 S.W. 187, 1920 Ky. LEXIS 125 ( Ky. 1920 ).

As one of principal purposes of a settlement suit is to afford creditors an opportunity to present and have their claims against estate allowed, there is no reason to require a creditor to file one suit for settlement of the estate and another suit to recover on his claim. Tanner v. Ayer, 209 Ky. 247 , 272 S.W. 720, 1925 Ky. LEXIS 473 ( Ky. 1925 ).

One who claims to be the creditor of the estate of a decedent, and who was made a party defendant to a cause of action brought pursuant to this section for a settlement of the estate, and who was called on therein to assert his claim and was served with process, and who then took no action to enforce his claim but permitted a final judgment of the court to be entered, settling the accounts of the administrator and the estate of the decedent, may not thereafter be heard to assert his claim. Ross v. Fox's Adm'r, 212 Ky. 838 , 280 S.W. 143, 1926 Ky. LEXIS 248 ( Ky. 1926 ).

Under this section any creditor of decedent has authority, six months after the date of qualification of the personal representative, to file an action to settle the insolvent estate of the decedent. Johnson v. Dodd's Adm'r, 238 Ky. 194 , 37 S.W.2d 26, 1931 Ky. LEXIS 208 ( Ky. 1931 ).

The heir of a creditor of decedent cannot bring suit to settle decedent’s estate, since personal property of heir’s testator vested in personal representative and action on claim must be brought by latter unless he refuses so to do. Moore's Adm'x v. Brookins, 263 Ky. 519 , 92 S.W.2d 813, 1936 Ky. LEXIS 214 ( Ky. 1936 ).

Infant was not hurt and cannot complain of the administrator allowing a creditor to proceed immediately with the suit when the administrator could have exercised the same right. Skidmore v. Napier, 292 Ky. 311 , 166 S.W.2d 439, 1942 Ky. LEXIS 82 ( Ky. 1942 ).

The requirement of this section that all known creditors of an estate be made parties to an action for settlement of the estate is not jurisdictional so that the omission of a common creditor in such a suit does not require that a sale ordered therein be set aside where there is no showing that the omission resulted from bad faith or fraud or that the creditor was prejudiced by the omission. Pogue v. Shutt's Adm'r, 263 S.W.2d 931, 1954 Ky. LEXIS 637 ( Ky. 1954 ).

7.— Necessary Parties.

No person other than parties named in this section is a necessary party in an action to settle an estate. Citizens' Nat'l Bank v. Boswell's Adm'r, 93 Ky. 92 , 19 S.W. 174, 14 Ky. L. Rptr. 17 , 1892 Ky. LEXIS 57 ( Ky. 1892 ).

In action brought by personal representative to settle an estate, where a personal representative appointed in another county was named as a defendant, such an action could be maintained against second representative although if he were simply a debtor to the estate, he could not be brought before the court in this action. Ashford v. Tipton, 53 S.W. 268, 21 Ky. L. Rptr. 866 , 1899 Ky. LEXIS 551 (Ky. Ct. App. 1899).

This section requires that person authorized to bring suit to settle estate make representatives all persons having liens upon or interest in the property left by decedent, and all known creditors parties defendant. Hill v. Mayes, 117 Ky. 877 , 79 S.W. 276, 25 Ky. L. Rptr. 2023 , 1904 Ky. LEXIS 257 ( Ky. 1904 ).

Where heirs of one estate own one-half interest in realty of second estate, they are interested and necessary parties to a suit to settle second estate. Harris v. Harris's Adm'r, 147 Ky. 712 , 145 S.W. 369, 1912 Ky. LEXIS 312 ( Ky. 1912 ).

Appellants, being claimants and in possession of a part of trust fund alleged to belong to estate of infant, were required by this section to be made parties to action to recover funds and settle estate. Taylor v. Harris' Adm'r, 164 Ky. 654 , 176 S.W. 168, 1915 Ky. LEXIS 436 ( Ky. 1915 ).

If an action to settle an estate is brought before the expiration of six months after the qualification of the personal representative, such representative is a necessary plaintiff. Hambrick v. Smith, 231 Ky. 423 , 21 S.W.2d 658, 1929 Ky. LEXIS 292 ( Ky. 1929 ).

In action to settle estate, the beneficiaries of devastavit committed by personal representative are proper, though not necessary parties. Peoples Nat'l Bank v. Guier, 284 Ky. 702 , 145 S.W.2d 1042, 1940 Ky. LEXIS 567 ( Ky. 1940 ).

8.— Premature Filing.

Administrator cannot obtain writ of prohibition to prevent lower court hearing action to settle estate even though such action was brought prematurely by heirs within six months, contrary to this section. Blenke v. Caldwell, 251 Ky. 46 , 64 S.W.2d 428, 1933 Ky. LEXIS 802 ( Ky. 1933 ).

No suit of any kind, including a suit to settle the estate, can be brought against an executor or administrator within six months after his qualification, and any action so brought shall be dismissed with costs. Collett v. Helton, 264 Ky. 214 , 94 S.W.2d 603, 1936 Ky. LEXIS 296 ( Ky. 1936 ).

Where petition showed that suit to settle estate was instituted less than six months after death of decedent, a special demurrer was proper method of questioning right of plaintiff to maintain the action. A general demurrer filed prior thereto, however, waives the question. Farmer v. Sales, 303 Ky. 124 , 196 S.W.2d 980, 1946 Ky. LEXIS 799 ( Ky. 1946 ).

Personal representative is the only party who can raise the question of a premature filing of settlement action brought by paternal heirs. Skinner v. Morrow, 318 S.W.2d 419, 1958 Ky. LEXIS 136 ( Ky. 1958 ).

The personal representative is the only party who could raise the question of premature filing. Skinner v. Morrow, 318 S.W.2d 419, 1958 Ky. LEXIS 136 ( Ky. 1958 ).

Where personal representative did not raise any objection concerning prematurity, the issue cannot be raised by another. Skinner v. Morrow, 318 S.W.2d 419, 1958 Ky. LEXIS 136 ( Ky. 1958 ).

9.— Attorney’s Fees.

It being proper under this section for administrator to bring suit for settlement of estate, an attorney’s fee and costs of suit were legitimate charges upon the estate. Seibert v. Bloomfield, 63 S.W. 584, 23 Ky. L. Rptr. 646 (1901).

Judgment of attorney’s fee, though seemingly large, will not be disturbed in the absence of the record before the court below, since to do so would be to speculate on nature of services rendered and to fix the fee upon bare conjecture. Seibert v. Bloomfield, 63 S.W. 584, 23 Ky. L. Rptr. 646 (1901).

No allowance of an attorney’s fee will be approved unless the services rendered by the attorney were necessary and redounded to the benefit of the estate, either in accomplishing some purpose that could be done only by litigation or other resulting benefits to be shared equally by its distributees. Gernert v. Liberty Nat'l Bank & Trust Co., 284 Ky. 575 , 145 S.W.2d 522, 1940 Ky. LEXIS 544 ( Ky. 1940 ).

A widow, in seeking to have the estate settled and her dower rights determined and assigned, is proceeding as a beneficiary and is, therefore, entitled to a reasonable allowance out of the estate for her attorney’s fees, where the conditions justify the action and other beneficiaries receive some benefit from the determination of rights for which the suit is instituted. Chalk v. Chalk, 291 Ky. 702 , 165 S.W.2d 534, 1942 Ky. LEXIS 310 ( Ky. 1942 ).

It was error to award administrator’s attorney fees incurred in connection with his suit to settle the estates of his parents without a finding that he had a good reason for maintaining the suit. White v. White, 883 S.W.2d 502, 1994 Ky. App. LEXIS 103 (Ky. Ct. App. 1994).

10.— Sale of Real Estate.

Where a creditor brought suit against executors for a settlement of the estate under this section, a personal representative who was empowered by the will to sell the real estate might sell same while an action is pending to settle the estate, and the purchaser would be required to take the property and comply with his contract of purchase. Mersman v. Worthington's Ex'rs, 72 S.W. 1094, 24 Ky. L. Rptr. 2115 (1903). See Harding's Adm'r v. Weisiger, 109 S.W. 890, 33 Ky. L. Rptr. 170 (1908).

In action to settle estate where decedent owned one-half undivided interest in town lot and an infant defendant owned the other half, administrator was entitled to have sale of only that part of lot in controversy which belonged to estate and not the entire lot. Towles' Adm'r v. Hart, 193 Ky. 91 , 234 S.W. 965, 1921 Ky. LEXIS 188 ( Ky. 1921 ).

A personal representative who was empowered by the will to sell the real estate might well sell same while an action is pending to settle the estate and the purchaser would be required to take the property and comply with the contract of purchase. Methodist Episcopal Church South v. McAdams, 263 Ky. 833 , 94 S.W.2d 11, 1936 Ky. LEXIS 260 ( Ky. 1936 ).

An action to sell real estate and an action to settle a decedent’s estate may be joined. Courtney v. Morgan, 288 Ky. 342 , 156 S.W.2d 175, 1941 Ky. LEXIS 109 ( Ky. 1941 ).

11.— — Parties.

In action to settle estate and sell land for payment of debts, all persons having lien on land should be made parties plaintiff or defendant, or should come into suit by an intervening petition and set up their debts. Callebs v. Ruble, 172 Ky. 113 , 188 S.W. 1096, 1916 Ky. LEXIS 167 ( Ky. 1916 ).

Where a person who has a lien on land ordered to be sold for the purpose of settling the estate is not made a party to the action, this will be ground for setting aside the sale if it appears that the failure to make him a party prejudiced the substantial rights of the widow and children. Callebs v. Ruble, 172 Ky. 113 , 188 S.W. 1096, 1916 Ky. LEXIS 167 ( Ky. 1916 ).

12.— — Debts.

In action to settle estate of deceased person in which it becomes necessary to sell land encumbered by lien debts, the court may order a sale for the purpose of paying all lien debts, although some of them have not matured. Callebs v. Ruble, 172 Ky. 113 , 188 S.W. 1096, 1916 Ky. LEXIS 167 ( Ky. 1916 ).

This section authorized the representative of a deceased person to bring an action for the settlement of the estate, but where real estate is sought to be sold to pay debts, the infant owner must be made a party defendant to the action. Broaddus v. Tevis, 297 Ky. 168 , 177 S.W.2d 901, 1943 Ky. LEXIS 171 ( Ky. 1943 ).

The proceeding to sell real estate passing by descent for the payment of an ancestor’s debts must be brought under this section and KRS 395.515 , the terms of which must be substantially complied with, otherwise the judgment is void. Smith v. Burnett, 300 Ky. 249 , 188 S.W.2d 480, 1945 Ky. LEXIS 546 ( Ky. 1945 ).

13.— — Infant’s Lands.

Insofar as the action seeks a sale of the infant’s lands for the debts of the ancestor, no judgment may be rendered, unless he is made a defendant to the action. Whalen v. Hopper's Guardian, 152 Ky. 727 , 154 S.W. 40, 1913 Ky. LEXIS 744 ( Ky. 1913 ).

Judgment and sale of infants’ realty were void where judgment did not declare real estate indivisible, nor show the indebtedness of the estate and no order was entered confirming the commissioner’s report showing the indebtedness, and the judgment made no provision for disposition to be made of surplus proceeds of sale. Bennett v. Owen, 183 Ky. 233 , 208 S.W. 815, 1919 Ky. LEXIS 457 ( Ky. 1919 ).

In a suit to sell indivisible estate in which an infant has an interest, the estate of the deceased may be settled under this section. Baxter Realty Co. v. Martin, 185 Ky. 697 , 216 S.W. 110, 1919 Ky. LEXIS 361 ( Ky. 1919 ).

Infant’s land may be sold for the payment of the debts of his ancestors in an action brought against him pursuant to this section. Allen v. Foth, 210 Ky. 343 , 275 S.W. 804, 1925 Ky. LEXIS 671 ( Ky. 1925 ).

The legislature has provided that the real estate of an infant may be sold to pay the debt or liability of the infant’s ancestor only in an action brought against the infant pursuant to this section. Bowles v. Bowles' Adm'x, 211 Ky. 250 , 277 S.W. 260, 1925 Ky. LEXIS 857 ( Ky. 1925 ).

14.— — Default Judgment.

In action by creditor against estate, a default judgment cannot be rendered against an infant heir. The law traverses all material allegations against him. The court may take judicial notice from description of property that it cannot be divided advantageously, but necessity for sale of land must be established by proof and it must appear that personal property of decedent was insufficient to pay debts. Soper v. Foster, 244 Ky. 658 , 51 S.W.2d 927, 1932 Ky. LEXIS 485 ( Ky. 1932 ).

15.— — Inadequacy of Price.

While inadequacy of price would not of itself be sufficient to authorize setting aside a sale under this section, the fact that this inadequacy was due to existence of lien, which was not set up in action, furnishes good reason for setting sale aside on exception of widow and children. Callebs v. Ruble, 172 Ky. 113 , 188 S.W. 1096, 1916 Ky. LEXIS 167 ( Ky. 1916 ).

16.— — Mortgage.

In action to settle estate, where mortgage on land contained clause permitting maker to pay bank after five years from date of note, judgment of sale should direct commissioner to sell property, free of lien, for an amount sufficient to satisfy bank’s claim and in event no such bid is received that the property be sold subject to bank’s lien. Federal Land Bank v. Allender's Adm'r, 289 Ky. 565 , 159 S.W.2d 1, 1942 Ky. LEXIS 572 ( Ky. 1942 ).

17.— — Appraisal.

In action to settle estate and to sell real property on ground of its indivisibility, since parties agreed that property should be sold on latter ground, the sale was not a coercive one and no appraisal was necessary. Rogers v. Cockrell, 286 Ky. 371 , 151 S.W.2d 54, 1941 Ky. LEXIS 285 ( Ky. 1941 ).

18.— — Sale Set Aside.

In creditor’s suit to sell real estate of decedent to pay his debts, where no order of reference was had, judgment by default was taken against infant defendants, and no proof of plaintiffs’ claims against the estate was heard, chancellor properly set aside judgment and sale on motion of infant defendants. Battermore v. Hensley, 267 Ky. 669 , 103 S.W.2d 68, 1937 Ky. LEXIS 363 ( Ky. 1937 ).

19.Mismanagement by Representative.

In cases involving the particular causes listed for removal of a personal representative in KRS 395.160 the District Court had original jurisdiction while in those situations where mismanagement, fraud, deception or other causes which require proceedings adversary in nature, the Circuit Court had jurisdiction pursuant to this section. Lee v. Porter, 598 S.W.2d 465, 1980 Ky. App. LEXIS 311 (Ky. Ct. App. 1980).

Where the decedent died intestate and plaintiffs were heirs at law their claims brought against the decedent’s administratrix asserting that she breached duties as a testamentary fiduciary by failing to recover for benefit of the estate sums which she herself wasted or improperly diverted during her tenure as inter vivos fiduciary were not fatally flawed by the absence of a judgment which declared that she defaulted as testamentary fiduciary. Priestley v. Priestley, 949 S.W.2d 594, 1997 Ky. LEXIS 66 ( Ky. 1997 ).

20.Creditors.

A creditor may not file a claim upon an estate, allow the applicable statute of limitations to run, and then assert its right to recover the debt outside the limitations period. White v. White, 883 S.W.2d 502, 1994 Ky. App. LEXIS 103 (Ky. Ct. App. 1994).

21.Authority to regulate.

While the District Court exercises supervision and control of guardians and while the guardianship statutes are mandatory and are to be strictly construed, upon the filing of a claim pursuant to this section where acts of mismanagement, fraud, or deception are alleged, the Circuit Court has jurisdiction to settle the estate and adjudicate all claims associated therewith. Priestley v. Priestley, 949 S.W.2d 594, 1997 Ky. LEXIS 66 ( Ky. 1997 ).

Cited:

Holland v. Lowe, 101 Ky. 98 , 19 Ky. L. Rptr. 97 , 39 S.W. 834, 1897 Ky. LEXIS 157 ( Ky. 1897 ); Oliver v. Sutton, 102 Ky. 334 , 19 Ky. L. Rptr. 1368 , 43 S.W. 475, 1897 Ky. LEXIS 120 ( Ky. 1897 ); Hilton v. Hilton’s Adm’r, 110 Ky. 522 , 22 Ky. L. Rptr. 1934 , 62 S.W. 6, 1901 Ky. LEXIS 106 ( Ky. 1901 ); Foster v. Foster, 71 S.W. 524, 24 Ky. L. Rptr. 1396 (1903); Faulkner v. Tucker, 83 S.W. 579, 26 Ky. L. Rptr. 1130 (1904); Beddow v. Wilson, 90 S.W. 228, 28 Ky. L. Rptr. 661 (1906); Dinning v. Conn’s Adm’r, 124 Ky. 623 , 30 Ky. L. Rptr. 855 , 99 S.W. 914, 1907 Ky. LEXIS 223 ( Ky. 1907 ); Hackett v. State Bank & Trust Co., 155 Ky. 392 , 159 S.W. 952, 1913 Ky. LEXIS 265 ( Ky. 1913 ); Miller’s Adm’r v. Ewing, 163 Ky. 401 , 174 S.W. 22, 1915 Ky. LEXIS 275 ( Ky. 1915 ); Stratton v. Wilson, 168 Ky. 699 , 182 S.W. 858, 1916 Ky. LEXIS 608 (1916); Miller’s Ex’rs v. Miller’s Heirs & Creditors, 172 Ky. 519 , 189 S.W. 417, 1916 Ky. LEXIS 211 ( Ky. 1916 ); Bailey’s Adm’r v. Hampton Grocery Co., 189 Ky. 261 , 224 S.W. 1067, 1920 Ky. LEXIS 412 ( Ky. 1920 ); Hill v. Adams, 190 Ky. 224 , 227 S.W. 148, 1921 Ky. LEXIS 410 ( Ky. 1921 ); Massie v. Paul, 263 Ky. 183 , 92 S.W.2d 11, 1936 Ky. LEXIS 149 ( Ky. 1936 ); Cox v. Monday, 264 Ky. 805 , 95 S.W.2d 785, 1936 Ky. LEXIS 410 ( Ky. 1936 ); Henry v. Wolfe, 273 Ky. 427 , 116 S.W.2d 983, 1938 Ky. LEXIS 658 ( Ky. 1938 ); Durham v. Taylor, 273 Ky. 603 , 117 S.W.2d 610, 1938 Ky. LEXIS 696 ( Ky. 1938 ); Smith v. Graham, 274 Ky. 144 , 118 S.W.2d 194, 1938 Ky. LEXIS 238 (Ky. 1938); Farmers Nat’l Bank v. First Colored Baptist Church, 277 Ky. 521 , 126 S.W.2d 1130, 1939 Ky. LEXIS 712 ( Ky. 1939 ); Sullenger v. Sullenger’s Adm’x, 287 Ky. 232 , 152 S.W.2d 571, 1941 Ky. LEXIS 511 ( Ky. 1941 ); Courtney v. Morgan, 288 Ky. 342 , 156 S.W.2d 175, 1941 Ky. LEXIS 109 ( Ky. 1941 ); Wilson v. Stephens, 290 Ky. 390 , 161 S.W.2d 604, 1942 Ky. LEXIS 408 ( Ky. 1942 ); Chalk v. Chalk, 291 Ky. 702 , 165 S.W.2d 534, 1942 Ky. LEXIS 310 ( Ky. 1942 ); Farmers Nat’l Bank v. Speckman, 312 Ky. 106 , 226 S.W.2d 315, 1949 Ky. LEXIS 1256 ( Ky. 1949 ); Stavros v. Bradley, 313 Ky. 676 , 232 S.W.2d 1004, 1950 Ky. LEXIS 916 ( Ky. 1950 ); Wood v. Wingfield, 816 S.W.2d 899, 1991 Ky. LEXIS 70 ( Ky. 1991 ).

Research References and Practice Aids

Cross-References.

Venue of action, KRS 452.415 , 452.420 .

Kentucky Bench & Bar.

Ratliff, Kentucky Probate — A Simple Overview, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 16.

Collier, Property Sale in Estate Settlement, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 31.

Northern Kentucky Law Review.

Muehlenkamp, Kentucky Estate Planning and Administration Update, 22 N. Ky. L. Rev. 489 (1995).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint to Sell Real Estate to Pay Decedent’s Debts, Form 317.01.

Caldwell’s Kentucky Form Book, 5th Ed., Creditor’s Complaint for Settlement of Estate of Deceased Debtor, Form 234.18.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Fiducial Sales, § 317.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Fraudulent and Preferential Conveyances, § 306.00.

395.515. Contents of petition, adjudication of rights of interested persons — Realty sold, when.

In such an action the petition must state the amount of the debts and the nature and value of the property, real and personal, of the decedent, so far as known to the plaintiff; if it appears that there is a genuine issue concerning the right of any creditor, beneficiary or heir-at-law to receive payment or distribution, or if it appears that there is a genuine issue as to what constitutes a correct and lawful settlement of the estate, or a correct and lawful distribution of the assets, such issues may be adjudicated by the court; and, if it shall appear that the personal estate is insufficient for the payment of all debts, the court may order the real property descended or devised to the heirs or devisees who may be parties to the action, or so much thereof as shall be necessary, to be sold for the payment of the residue of such debts.

History. C. C. 429: trans. Acts 1952, ch. 84, § 1; amend. Acts 1964, ch. 105, § 1.

NOTES TO DECISIONS

1.Purpose.

Purpose of this provision is to bring the entire estate of decedent, and a statement of his debts, within the jurisdiction of the court, in order that the rights of all parties interested in either may be properly and equitably adjusted. Harris v. Harris's Adm'r, 147 Ky. 712 , 145 S.W. 369, 1912 Ky. LEXIS 312 ( Ky. 1912 ).

While the circuit court described the sisters’ claims as alleging mismanagement and fraud, the claims alleging that the personal representative and other family members owe money to the Estate satisfied the statute’s requirement as there appeared to be a genuine issue as to what constituted a correct and lawful settlement of the Estate and/or a correct and lawful distribution of the assets; this action, an adversarial proceeding, fell within the bounds of the statutes, and having concluded that the Jefferson Circuit Court had subject-matter jurisdiction of the sisters’ claims, a first-class writ was not available to the representative. Goff v. Edwards, 2022 Ky. LEXIS 295 (Ky. Sept. 22, 2022).

2.Contents of Petition.

An action to subject real estate of an infant to the payment of the debts of his ancestor is in the nature of an action to settle the estate, and the provisions of KRS 395.510 and this section must be substantially complied with both as to the allegations of the petition and proof necessary to sustain the judgment. Jones v. Keen, 289 Ky. 779 , 160 S.W.2d 164, 1942 Ky. LEXIS 642 ( Ky. 1942 ).

3.— Insufficient Pleadings.

Since petition in foreclosure suit failed to allege the amount of all known debts, the nature and value of both realty and personalty owned by decedent, and facts sufficient to show that the personal estate was insufficient for payment of all debts, it was fatally defective and wholly insufficient to sustain the judgment or sale. Jones v. Keen, 289 Ky. 779 , 160 S.W.2d 164, 1942 Ky. LEXIS 642 ( Ky. 1942 ).

Fact that petition failed to comply with provisions of this section was not ground for writ of prohibition against judge who overruled special and general demurrer, since petitioner had an adequate remedy by appeal. Smith v. Burnett, 300 Ky. 249 , 188 S.W.2d 480, 1945 Ky. LEXIS 546 ( Ky. 1945 ).

Where petition did not state amount of debts, nature and value of property, nor that the personal estate was insufficient for the payment of all or any debts, it did not state cause of action under this section and court should have sustained general demurrer thereto. Smith v. Louisville Trust Co., 308 Ky. 189 , 213 S.W.2d 987, 1948 Ky. LEXIS 877 ( Ky. 1948 ).

4.Sale of Real Estate.

This section authorizes the court to order sale of real property for payment of debts if it shall appear to the satisfaction of the court that the personal estate is insufficient for payment of all debts, no matter whether it appear from the report of the commissioner or from the pleadings. Harlammert v. Moody's Adm'r, 26 S.W. 2, 15 Ky. L. Rptr. 839 (1894).

This section provides, in effect, that if it shall appear that the personal estate is insufficient for the payment of all the debts, the court may order the real property descended or devised to the heirs, or so much thereof as may be necessary, to be sold for the residue of such debts. Auxier v. Clarke, 82 S.W. 605, 26 Ky. L. Rptr. 890 , 1904 Ky. LEXIS 399 (Ky. Ct. App. 1904).

Under provisions of this section, the court was without authority to sell real estate when there was sufficient personal estate to pay debt upon which suit was brought. Davidson v. Marcum, 89 S.W. 703, 28 Ky. L. Rptr. 562 , 1905 Ky. LEXIS 259 (Ky. Ct. App. 1905).

This section authorizes the court to order the sale of real property for the payment of debts if it shall appear to satisfaction of the court that the personal estate is insufficient for payment of all the debts, no matter whether it appears from the report of the commissioner or from the pleadings. Union Trust & Sav. Co. v. Marshall's Adm'rs, 130 Ky. 206 , 113 S.W. 73, 1908 Ky. LEXIS 251 ( Ky. 1908 ).

The court is without authority to sell any more of the land than is necessary for the payment of debts. Ware's Guardian v. Ware, 233 Ky. 109 , 25 S.W.2d 56, 1930 Ky. LEXIS 512 ( Ky. 1930 ).

Where it was not established that either of decendents’ estate lacked sufficient personalty to pay valid claims, the court lacked authority under this section to order the sale of the property owned by the decedents at the time of their death. White v. White, 883 S.W.2d 502, 1994 Ky. App. LEXIS 103 (Ky. Ct. App. 1994).

5.— Infants’ Lands.

The court has no power or jurisdiction to sell the real estate of infants for the payment of debts of their ancestor until the personal estate of the decedent is exhausted, and then to sell only so much as will pay the remainder of the debt. Auxier v. Clarke, 82 S.W. 605, 26 Ky. L. Rptr. 890 , 1904 Ky. LEXIS 399 (Ky. Ct. App. 1904).

In cases where the rights of infants are not involved, a reference to the commissioner is not indispensable to the validity of a judgment directing the sale of the real estate of a decedent, nor need it always precede the judgment. Union Trust & Sav. Co. v. Marshall's Adm'rs, 130 Ky. 206 , 113 S.W. 73, 1908 Ky. LEXIS 251 ( Ky. 1908 ).

Since the source of the court’s authority to divest title of an infant in his land is the statutes, there must be no departure from these, else the sale is void for want of jurisdiction. Soper v. Foster, 244 Ky. 658 , 51 S.W.2d 927, 1932 Ky. LEXIS 485 ( Ky. 1932 ).

Since the power of the court to order a sale of an infant’s real estate for the payment of his ancestor’s debt is derived by statute, any substantial departure from procedure outlined by statute deprives the court of its authority to order the sale and renders any attempted exercise of such authority void. Jones v. Keen, 289 Ky. 779 , 160 S.W.2d 164, 1942 Ky. LEXIS 642 ( Ky. 1942 ).

6.Personal Judgment Against Heirs.

Personal judgment cannot be rendered against the heirs of the deceased unless it be shown that they have participated in a distribution of the assets of the estate. Jones v. Keen, 289 Ky. 779 , 160 S.W.2d 164, 1942 Ky. LEXIS 642 ( Ky. 1942 ).

7.Enforcement of Mortgage.

A mortgagee enforcing mortgage against infant heirs of mortgagor must proceed in the manner prescribed by the statute, where mortgagor is owner of complete title to land covered by mortgage. Ohio Oil Co. v. West, 284 Ky. 796 , 145 S.W.2d 1035, 1940 Ky. LEXIS 566 ( Ky. 1940 ).

8.Costs and Attorneys’ Fees.

KRS 395.510 and this section authorize the institution of a suit by a creditor of a deceased person for a settlement of his estate, but where sole object of such suit was to secure payment of plaintiff’s debt, such creditor is not entitled to recover cost and attorneys’ fees. Dougherty v. Cummings' Adm'r, 50 S.W. 551, 20 Ky. L. Rptr. 1948 (1899).

9.Second Petition Filed.

Where administrators had filed a petition for settlement of an estate under this section, the petition had been denied, the denial had been affirmed by the Court of Appeals and the administrators had filed another petition for settlement, the request for a permanent injunction to prohibit the administrators from prosecuting such petition was improperly denied. Smith v. Louisville Trust Co., 237 S.W.2d 836, 1951 Ky. LEXIS 775 ( Ky. 1951 ).

10.Contract with Personal Representative.

Where there is a binding and enforceable contract between a party and the personal representatives for an estate, and where the parties to that contract are before the circuit court, it has in its sound judicial discretion the equity power to enforce that contract for the purpose of settling the estate. McGuire v. Citizens Fidelity Bank & Trust Co., 805 S.W.2d 119, 1991 Ky. LEXIS 23 ( Ky. 1991 ).

Cited:

Meyer v. Zotel’s Adm’r, 96 Ky. 362 , 16 Ky. L. Rptr. 506 , 29 S.W. 28, 1895 Ky. LEXIS 91 ( Ky. 189 5 ); Holland v. Lowe, 101 Ky. 98 , 19 Ky. L. Rptr. 97 , 39 S.W. 834, 1897 Ky. LEXIS 157 ( Ky. 189 7 ); Faulkner v. Tucker, 83 S.W. 579, 26 Ky. L. Rptr. 1130 (1904); Staton v. Byron, 105 S.W. 928, 32 Ky. L. Rptr. 246 (1907); Foley v. Graham’s Guardian, 110 S.W. 838, 33 Ky. L. Rptr. 627 (1908); Carter v. Crow’s Adm’r, 130 Ky. 41 , 112 S.W. 1098, 1908 Ky. LEXIS 237 (1908); Luscher v. Julian’s Adm’r, 173 Ky. 15 0, 190 S.W. 692, 1917 Ky. LEXIS 426 ( Ky. 1917 ); Hill v. Adams, 190 Ky. 224 , 227 S.W. 148, 1921 Ky. LEXIS 410 ( Ky. 1921 ); Smith v. Louisville Trust Co., 308 Ky. 189, 213 S.W.2d 987, 1948 Ky. LEXIS 877 ( Ky. 1948 ); Louisville Trust Co. v. Smith, 313 Ky. 15 , 230 S.W.2d 64, 1950 Ky. LEXIS 790 (1950).

Research References and Practice Aids

Kentucky Bench & Bar.

Ratliff, Kentucky Probate — A Simple Overview, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 16.

Collier, Property Sale in Estate Settlement, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 31.

Northern Kentucky Law Review.

Muehlenkamp, Kentucky Estate Planning and Administration Update, 22 N. Ky. L. Rev. 489 (1995).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint to Sell Real Estate to Pay Decedent’s Debts, Form 317.01.

Caldwell’s Kentucky Form Book, 5th Ed., Creditor’s Complaint for Settlement of Estate of Deceased Debtor, § 234.18.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Fiducial Sales, § 317.00.

395.520. Claims to be proved before commissioner — Notice to creditors.

In all actions the court shall make an order for the creditors of the decedent to appear before a commissioner, to be appointed by the court, and prove their claims before a certain day to be named in the order, notice of which shall be given by publication pursuant to KRS Ch. 424; and, by such other publication as the court directs.

History. C. C. 430: trans. Acts 1952, ch. 84, § 1; amend. Acts 1966, ch. 239, § 226.

NOTES TO DECISIONS

1.In General.

The complaint and deposition filed in separate action by the bank against the estate did not meet the requirements of KRS 396.010 and this section, so as to entitle it to share in the estate. First Nat'l Bank v. First Nat'l Bank, 567 S.W.2d 316, 1978 Ky. App. LEXIS 544 (Ky. Ct. App. 1978).

2.Purpose.

Purpose of this section is to give every creditor, whether known or unknown, notice of action to settle estate and, where these and like provisions are complied with, a creditor who fails to assert his claim may not after judgment recover it unless he can do so against the legatees or distributees. Hill v. Mayes, 117 Ky. 877 , 79 S.W. 276, 25 Ky. L. Rptr. 2023 , 1904 Ky. LEXIS 257 ( Ky. 1904 ).

3.Reference to Commissioner.

Since settlor could have left debts action against trustee, to recover assets of trust in hands of trustee should have been referred to a master commissioner to advertise for claims and proof of creditors against her estate as protection to the trustee against possible creditors of settlor. Farmers Nat'l Bank v. Young, 297 Ky. 95 , 179 S.W.2d 229, 1944 Ky. LEXIS 693 ( Ky. 1944 ).

4.Sale of Real Estate.

Order of reference required by this section is not indispensable to validity of a judgment directing sale of real estate of a decedent, nor need it always precede the judgment. Harlammert v. Moody's Adm'r, 26 S.W. 2, 15 Ky. L. Rptr. 839 (1894).

Research References and Practice Aids

Kentucky Bench & Bar.

Collier, Property Sale in Estate Settlement, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 31.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint to Sell Real Estate to Pay Decedent’s Debts, Form 317.01.

Caldwell’s Kentucky Form Book, 5th Ed., Order of Reference to Commissioner, Form 234.19.

395.525. Powers of clerk during vacation — Appearance before master commissioner — Notice. [Repealed.]

Compiler’s Notes.

This section (C.C. 431; Acts 1952, ch. 84, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

395.530. Effect of creditor presenting claim.

A creditor appearing before the commissioner and presenting his claim becomes thereby a party to the action, and is concluded by the final judgment of the court allowing or rejecting his claim.

History. C. C. 432: trans. Acts 1952, ch. 84, § 1, effective July 1, 1953.

NOTES TO DECISIONS

1.Parties.

Presenting a claim before commissioner, under provisions of this section, made claimant a party to action to settle estate. Story v. Story's Adm'r, 35 S.W. 540, 18 Ky. L. Rptr. 97 (1896).

A creditor, merely by filing his claim in action to settle estate, becomes a party thereto. Kelley v. Culver's Adm'r, 116 Ky. 241 , 75 S.W. 272, 25 Ky. L. Rptr. 443 , 1903 Ky. LEXIS 179 ( Ky. 1903 ).

Creditors filing claims in action for appointment of receiver become parties to the suit. Justice v. Elkhorn Wholesale Grocery Co., 218 Ky. 586 , 291 S.W. 780, 1927 Ky. LEXIS 198 ( Ky. 1927 ).

2.Restitution or Refund by Distributees.

Where creditor, appealing decision as to her claim, failed to execute a supersedeas bond and stay proceedings and funds of estate were distributed under order of court, such failure does not deprive her of right to require distributees to make restitution or refund of the estate so received by them. Massie v. Paul, 263 Ky. 183 , 92 S.W.2d 11, 1936 Ky. LEXIS 149 ( Ky. 1936 ).

3.Res Judicata.

Where a creditor is made a party to an action to settle an estate, or appears and presents his claim, the orders and decrees allowing claims against the estate of the decedent and a distribution among the heirs, devisees, or legatees are res judicata as to such parties. Massie v. Paul, 263 Ky. 183 , 92 S.W.2d 11, 1936 Ky. LEXIS 149 ( Ky. 1936 ).

4.United States as Party.

Where the United States was not named as a party in a suit to settle an estate, but it filed its claim for withholding and unemployment taxes, it thereby became a party to the action and was bound by the final judgment therein. United States v. Buckley, 264 S.W.2d 65, 1954 Ky. LEXIS 644 (Ky. Ct. App. 1954).

Cited:

Hill v. Mayes, 117 Ky. 877 , 25 Ky. L. Rptr. 2023 , 79 S.W. 276, 1904 Ky. LEXIS 257 ( Ky. 1904 ); Duff v. Combs, 132 Ky. 710 , 117 S.W. 259, 1909 Ky. LEXIS 147 (1909); Combs v. Allen, 208 Ky. 519 , 271 S.W. 598, 1925 Ky. LEXIS 319 ( Ky. 1925 ); Johnson v. Dodd’s Adm’r, 238 Ky. 194 , 37 S.W.2d 26, 1931 Ky. LEXIS 208 , 77 A.L.R. 975 ( Ky. 1931 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Collier, Property Sale in Estate Settlement, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 31.

Kentucky Law Journal.

Roberts, Receiverships in Kentucky, 27 Ky. L.J. 127 (1939).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint to Sell Real Estate to Pay Decedent’s Debts, Form 317.01.

395.535. Effect of creditor failing to present claim — Liability of distributees.

Creditors failing to appear and prove their claims, pursuant to such order, shall have no claim against the executor or administrator who has actually paid out the estate in expenses of administration, and to creditors, legatees or distributees, and shall have no claim against the legatees or distributees.

History. C. C. 433: trans. Acts 1952, ch. 84, § 1; 1974, ch. 299, § 17.

NOTES TO DECISIONS

1.Construction.

If an action to settle an estate is instituted and statutory provisions are complied with, then creditors failing to appear and prove their claims agreeable to the order of the court shall have no claims against an executor or administrator who has paid out estate in due course to other creditors, legatees or distributees. Johnson v. Dodd's Adm'r, 238 Ky. 194 , 37 S.W.2d 26, 1931 Ky. LEXIS 208 ( Ky. 1931 ).

2.Partial Claim.

Creditor who appears and presents only part of claims in action to settle estate is precluded from thereafter presenting remainder. Parker v. White, 223 Ky. 561 , 4 S.W.2d 380, 1928 Ky. LEXIS 388 ( Ky. 1928 ).

3.Creditor Made Defendant.

When a creditor is made defendant in an action to settle estate or appears before the commissioner to prove his claim, the issue is raised not only as to whether he has a claim but as to the amount thereof, and if creditor fails to present all of his claim or all claims which he has, a subsequent suit against personal representative on remainder is barred. Story v. Story's Adm'r, 35 S.W. 540, 18 Ky. L. Rptr. 97 (1896).

4.Failure to File.

Where creditor filed one claim in action to settle estate but failed to file second claim and seeks recovery in this action against personal representative, judgment for defendant was affirmed under this section. Story v. Story's Adm'r, 35 S.W. 540, 18 Ky. L. Rptr. 97 (1896).

Cited:

Hill v. Mayes, 117 Ky. 877 , 25 Ky. L. Rptr. 2023 , 79 S.W. 276, 1904 Ky. LEXIS 257 ( Ky. 1904 ); Massie v. Paul, 263 Ky. 183 , 92 S.W.2d 11, 1936 Ky. LEXIS 149 ( Ky. 1936 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Collier, Property Sale in Estate Settlement, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 31.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint to Sell Real Estate to Pay Decedent’s Debts, Form 317.01.

395.540. Liability of legatees and distributees to creditors. [Repealed.]

Compiler’s Notes.

This section (C. C. 434: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1974, ch. 299, § 19.

395.545. Distributee or legatee may be required to give bond for payment of debts. [Repealed.]

Compiler’s Notes.

This section (C. C. 435: amend. Acts 1880, ch. 973; trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1974, ch. 299, § 19.

395.550. Creditors actions may be enjoined while action for settlement pending.

Upon the institution of the action mentioned in KRS 395.510 , an order may be made enjoining the prosecution of actions against the representatives of a decedent, by creditors, for their demands. But such enjoining shall not be made, unless the action for the settlement of the estate be commenced within three (3) years after the qualification of the personal representative.

History. C. C. 436: trans. Acts 1952, ch. 84, § 1, effective July 1, 1953.

NOTES TO DECISIONS

1.Construction.

Construing this section and KRS 378.100 together, a creditor cannot be enjoined from seeking a personal judgment against his debtor, but he can be enjoined from prosecuting actions with purpose to enforce liens on the assigned estate or for any judgment which affects the assignee of the assigned estate. Deposit Bank of Smiths Grove v. Kirby, 175 Ky. 700 , 194 S.W. 929, 1917 Ky. LEXIS 382 ( Ky. 1917 ).

This section and KRS 378.100 are authority for making an order enjoining prosecution of separate suits by creditors of an assigned estate. Deposit Bank of Smiths Grove v. Kirby, 175 Ky. 700 , 194 S.W. 929, 1917 Ky. LEXIS 382 ( Ky. 1917 ).

2.Consolidation and Application of Injunction.

Suit of appellant bank having already been filed at time suit began by assignee for settlement of the estate, the court should not have enjoined appellant creditor from prosecuting its suit for a personal judgment against the assignors, but should have made the injunction apply to the attempt to enforce its lien upon the assigned estate, and should have ordered creditor’s suit consolidated with suit to settle assigned estate. Deposit Bank of Smiths Grove v. Kirby, 175 Ky. 700 , 194 S.W. 929, 1917 Ky. LEXIS 382 ( Ky. 1917 ).

Cited:

Schmidt v. Mitchell, 98 Ky. 218 , 17 Ky. L. Rptr. 850 , 32 S.W. 599, 1895 Ky. LEXIS 34 ( Ky. 1895 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Collier, Property Sale in Estate Settlement, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 31.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint to Sell Real Estate to Pay Decedent’s Debts, Form 317.01.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Fraudulent and Preferential Conveyances, § 306.00.

District Court Settlements

395.600. District Court settlements.

The District Court shall make settlements with personal representatives, assignees, conservators, curators, and guardians in his county.

History. Enact. Acts 1976 (Ex. Sess.), ch. 14, § 368, effective January 2, 1978; 1978, ch. 12, § 1, effective June 17, 1978; 1982, ch. 141, § 111, effective July 1, 1982; 2014, ch. 25, § 115, effective July 15, 2014.

Opinions of Attorney General.

Since the District Court has exclusive jurisdiction of uncontested probate matters, any papers relative to an uncontested estate in which no final settlement was filed prior to January 2, 1978, should be transferred to the clerk of the District Court of that county and duplicates should be filed with the county clerk. OAG 78-68 .

395.605. When informal settlement may be accepted from fiduciary.

  1. Upon the sworn application of any fiduciary, that the fiduciary is the sole beneficiary of any estate, the court may dispense with the requirements of this chapter regarding periodic or final settlement of fiduciaries’ accounts and may dispense with the requirements of a surety for the fiduciary and shall accept from the fiduciary an informal settlement. The informal settlement shall be made, under oath, by the fiduciary and shall state that the estate was solvent; that all legal claims and debts have been paid, or if not paid, the manner in which the claims and debts have been provided for; that, for final settlement, the requirements of the inheritance, estate or similar death statutes have been met and the tax paid, if due and payable; that all court costs have been paid; the name of the attorney(s), if any, representing the fiduciary, and the amount of the attorney’s fee, and that the beneficiary has received his or her share. An informal settlement may be filed at any time after expiration of six (6) months from the fiduciary’s appointment. Upon the filing of the informal final settlement, the court may enter an order discharging the fiduciary, and his or her surety, if any. When a settlement is effected in the informal manner, no notice to any person shall be required nor shall the court be compelled to inquire into detailed items of income or disbursements.
  2. If a proposed periodic or final settlement of a fiduciary is accompanied by a verified waiver executed by all of the beneficiaries of an estate, and none of the beneficiaries is under a disability, the court shall accept from the fiduciary an informal settlement which meets the requirements of subsection (1) of this section. Said beneficiaries may request an accounting of the assets of the estate prior to execution of the waiver. No verified waiver need be obtained from a nonresiduary legatee who has received and receipted for his or her legacy, the canceled check or signed receipt attached to the proposed settlement being sufficient evidence of satisfaction. The court may require the fiduciary to execute bond with or without surety to insure the application of the estate assets to the debts of the decedent.
  3. In the event that one (1) or more of the beneficiaries of the estate is under a disability, the court may allow the filing of an informal settlement if the court is of the opinion that the best interests of the person under the disability would be served.

History. Enact. Acts 1976 (Ex. Sess.), ch. 14, § 369, effective January 2, 1978; 1980, ch. 259, § 24, effective July 15, 1980; 1988, ch. 90, § 31, effective July 15, 1988; 2000, ch. 151, § 5, effective July 14, 2000; 2002, ch. 362, § 2, effective July 15, 2002; 2012, ch. 60, § 1, effective July 12, 2012; 2013, ch. 127, § 1, effective June 25, 2013.

Opinions of Attorney General.

Under the express language of subsection (1) of this section requiring a fiduciary to attach a duplicate or photocopy of tax releases “if available,” the District Court has no authority to require, as a condition precedent, the attaching of the tax releases to the application. The court can only require the fiduciary to either attach the tax releases, if available, or, if not available, to so state in his or her application for informal settlement. OAG 83-173 .

Research References and Practice Aids

Kentucky Bench & Bar.

Ratliff, Kentucky Probate — A Simple Overview, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 16.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Affidavit for Informal Settlement (Jefferson County), Form 233.28.

Caldwell’s Kentucky Form Book, 5th Ed., Affidavit of Waiver of Formal Settlement (AOC 851), Form 233.19.

Caldwell’s Kentucky Form Book, 5th Ed., Fiduciary Bond (AOC 825), Form 233.04.

Caldwell’s Kentucky Form Book, 5th Ed., Informal Final Settlement: Affidavit, Motion, and Order (AOC 850), Form 233.18.

395.610. Periodic accounting by fiduciaries.

  1. Two (2) years after appointment and annually thereafter, unless otherwise provided by law, every fiduciary as defined in KRS 395.001 , other than a guardian or conservator of a mentally disabled person, shall render an account of the execution of his trust to the court by which he was appointed, including in the account an itemized statement of receipts and disbursements supported by vouchers accompanying the account and a statement of all investments on hand and changes in investments since the filing of his last account. The settlements, when approved and confirmed by the court, shall be recorded and indexed by the clerk, and the original and the vouchers carefully kept by him in his office. An account shall be rendered by a fiduciary, at any other time upon order of the court upon its own motion or that of any person interested in the trust, for good cause shown on affidavit. At the expiration of his trust, the fiduciary shall fully account for and pay over the trust estate to the person or persons entitled thereto. Every such account shall list all unpaid creditors whose claims have been allowed and all creditors whose claims have been disallowed. No account of a fiduciary, except of corporate fiduciaries under the supervision of state or federal banking authorities, shall be approved until there are exhibited to the court, for its examination, the security or securities shown in the account as being in the hands of the fiduciary, or the certificate of a bank having possession thereof or in which they have been deposited for safekeeping, and a certified bank statement showing the funds to the credit of the trust.
  2. Guardians and conservators of mentally disabled persons may be required to render accountings to the court under the provisions of this section. Guardians and conservators of mentally disabled persons shall comply with the reporting requirements of KRS Chapter 387.

History. Enact. Acts 1976 (Ex. Sess.), ch. 14, § 370, effective January 2, 1978; 1978, ch. 326, § 3, effective June 17, 1978; 1980, ch. 259, § 25, effective July 15, 1980; 1982, ch. 141, § 112, effective July 1, 1982; 1990, ch. 487, § 23, effective July 13, 1990; 2007, ch. 82, § 1, effective June 26, 2007; 2014, ch. 25, § 116, effective July 15, 2014.

NOTES TO DECISIONS

1.Periodic Accounting.
2.— Ambiguous Statements.

Because payments from the estate for legal fees benefitted the attorney directly, but were ambiguously listed on the periodical settlement in a manner which could have been taken to mean that the payments were for the payees’ representation of the attorney in his capacity as executor, attorney was guilty of violating rules against disclosure and misrepresentation; this and other violations of professional and fiduciary duties resulted in suspension from the practice of law for three years. Kentucky Bar Ass'n v. Profumo, 931 S.W.2d 149, 1996 Ky. LEXIS 93 ( Ky. 1996 ), overruled in part, Ky. Bar Ass'n v. Calvert, 607 S.W.3d 700, 2020 Ky. LEXIS 285 ( Ky. 2020 ).

3.Complete Accounting.

In a guardianship matter where the guardian was ordered to provide a full accounting, the county attorney and the guardian ad litem objected to the accounting on the grounds that it did not include any explanation of the expenditures as required by KRS 395.610 . The court held the guardian in contempt for failing to provide a complete accounting. Karem v. Bryant, 370 S.W.3d 867, 2012 Ky. LEXIS 82 ( Ky. 2012 ).

Opinions of Attorney General.

The provision of this section requiring a physical disclosure of security or securities shown in the account refers to all fiduciaries as specifically defined by KRS 395.010 except corporate fiduciaries under supervision of state or federal banking authorities. OAG 78-298 .

A fiduciary who has been appointed within the year preceding July 15, 1980, the effective date of the 1980 amendment to this section, must file his first periodic settlement within two years of his appointment as required by such amendment. OAG 81-181 .

Research References and Practice Aids

Kentucky Bench & Bar.

Ratliff, Kentucky Probate — A Simple Overview, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 16.

Northern Kentucky Law Review.

Calvert, Probate Law, 21 N. Ky. L. Rev. 367 (1994).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Final Settlement and Order, Form 233.17.

Caldwell’s Kentucky Form Book, 5th Ed., Final Settlement and Order Following Proposed Final Settlement, Form 233.26.

Caldwell’s Kentucky Form Book, 5th Ed., Order Confirming Periodic/Final Settlement of Guardian, Form 261.10.

Caldwell’s Kentucky Form Book, 5th Ed., Order Discharging Administrator, Form 234.14.

Caldwell’s Kentucky Form Book, 5th Ed., Periodic/Final Settlement of Guardian/Conservator for Minor/Disabled Person (AOC 856), Form 261.09.

Caldwell’s Kentucky Form Book, 5th Ed., Periodic Settlement, Form 233.16.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Guardian and Ward of Minors, § 261.00.

395.615. Evidence — How produced — Allowances to be supported by facts.

The District Court may hear evidence for or against any item, and may question fiduciaries, under oath, about any matter connected with the settlement. Witnesses may be summoned at the instance of either party to give evidence when the settlement is made, or upon the trial of exceptions thereto, and their attendance may be coerced as in other cases. All oral evidence shall be electronically recorded and no evidence shall be presumed to have been heard unless it has been so recorded. No credit shall be allowed a fiduciary for disbursements, fees or services without legal evidence to justify it.

History. Enact. Acts 1976 (Ex. Sess.), ch. 14, § 371, effective January 2, 1978; 1978, ch. 12, § 2, effective June 17, 1978.

NOTES TO DECISIONS

1.Application.

A new section of the statutes providing for District Court settlements of fiduciaries was created by the special session of the 1976 legislature, but insofar as the hearing of evidence in connection therewith, it is not mandatory that the District Court do so. Lee v. Porter, 598 S.W.2d 465, 1980 Ky. App. LEXIS 311 (Ky. Ct. App. 1980).

2.Excessive and Illegal Fees.

Because a compensated executor cannot also receive fees for his work as an estate’s attorney unless appointment and compensation as both can be evinced by testator’s will, and because evidence did not support finding that attorney was intended to be compensated as both, attorney was in violation of rules against collection of excessive or illegal fees; this and other violations of professional and fiduciary duties resulted in suspension from the practice of law for three years. Kentucky Bar Ass'n v. Profumo, 931 S.W.2d 149, 1996 Ky. LEXIS 93 ( Ky. 1996 ), overruled in part, Ky. Bar Ass'n v. Calvert, 607 S.W.3d 700, 2020 Ky. LEXIS 285 ( Ky. 2020 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Ratliff, Kentucky Probate — A Simple Overview, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 16.

395.617. Proposed settlement.

  1. A fiduciary may, prior to filing a periodic or final settlement and prior to a distribution of assets, file with the court a proposed settlement. The proposed settlement shall be set for hearing and notice given as for any other settlement except that beneficiaries of the estate, other than nonresiduary legatees who have received and receipted for their legacies, shall also receive notice from the fiduciary by certified mail, return receipt requested, at least twenty (20) days prior to the hearing date. The proposed settlement shall set forth all assets and disbursements previously made, shall indicate assets on hand and anticipated to be received subsequent to the date of the proposed settlement and prior to the filing of the periodic or final settlement, and shall further indicate the manner in which the remaining and anticipated assets are proposed to be distributed. The proposal may set forth which assets are to be distributed in kind and to whom and which assets may be liquidated for distribution of cash or for payment of debts, costs of administration, or pecuniary legacies. The proposal may also indicate claims proposed to be allowed or disallowed, in whole or in part, and may also indicate fees and commissions proposed to be paid to the fiduciary and his attorney. The inclusion of evidence and vouchers to accompany the proposal shall not be necessary unless required by the court upon exceptions filed. At the hearing, if no exceptions are filed, the proposal, if made according to law, shall be approved. If exceptions are filed, other evidence besides that reported may be heard, and the court shall, upon the whole case, reject, confirm, alter, or amend the proposal. Following the entry of an order of approval or of an order of amendment, the fiduciary shall disburse the assets in accordance therewith. Following the distribution, the fiduciary shall file a settlement accompanied by evidence and vouchers showing that distribution was effected in conformity with the court order. If it appears to the court that the distribution was in conformity, the court shall confirm the settlement and, if the settlement is final, discharge the fiduciary and his surety without further hearing or notice to any person.
  2. An aggrieved party may, no later than thirty (30) days from the entry of the order upon the proposed settlement, institute an adversary proceeding in Circuit Court pursuant to KRS 24A.120(2).

History. Enact. Acts 1992, ch. 218, § 1, effective July 14, 1992; 1998, ch. 517, § 11, effective September 1, 1998.

Legislative Research Commission Note.

(6/24/2003). Under the authority of KRS 7.136 , the Reviser of Statutes has changed a reference in subsection (2) of this section from “KRS 24A.120(1)(b)” to “KRS 24A.120(2).”

Research References and Practice Aids

Northern Kentucky Law Review.

Calvert, Probate Law, 21 N. Ky. L. Rev. 367 (1994).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Motion of Executor for Discharge, Form 234.12.

Caldwell’s Kentucky Form Book, 5th Ed., Proposed Final Settlement and Order, Form 233.25.

395.620. Report and filing of settlement.

  1. The District Judge shall make a written report of the settlement, showing each item of debit and credit, and the general result, and return it, with all evidence heard and vouchers filed, to the Circuit Clerk. The clerk shall note it of record, and indorse on it the time of filing, and set a date for a hearing on the report.
  2. A hearing on a settlement filed in conformity with an approved proposed settlement made under KRS 395.617 shall not be necessary.

History. Enact. Acts 1976 (Ex. Sess.), ch. 14, § 372, effective January 2, 1978; 1978, ch. 12, § 3, effective June 17, 1978; 1992, ch. 218, § 2, effective July 14, 1992.

Research References and Practice Aids

Kentucky Bench & Bar.

Ratliff, Kentucky Probate — A Simple Overview, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 16.

Northern Kentucky Law Review.

Calvert, Probate Law, 21 N. Ky. L. Rev. 367 (1994).

395.625. Notice requirements for filing of settlement — Exception.

Not less than ten (10) days prior to the date of hearing, the clerk shall cause notice of the filing of a settlement to be published pursuant to KRS Chapter 424, stating the name of the fiduciary, the trust, the nature of the account and the date of hearing, with a statement that exceptions must be filed before that time; except that with the court’s approval the fiduciary may, in lieu of such publication, send a written notice thereof to all unpaid creditors and distributees, which notice shall be mailed at least ten (10) days before said date of hearing. The fiduciary in such cases shall file his affidavit that such notice has been mailed. The actual cost of the notice, or the proportionate part thereof, if more than one (1) settlement, shall be taxed as costs. If the value of the trust or estate is not more than two thousand five hundred dollars ($2,500) and the assets of the trust or estate are held in an account that may be accessed only upon order of the court, the provisions of this section shall not apply to settlements involving that trust or estate.

History. Enact. Acts 1976 (Ex. Sess.), ch. 14, § 373, effective January 2, 1978; 2001, ch. 21, § 1, effective June 21, 2001.

Opinions of Attorney General.

It is the responsibility of the District Court clerk to advertise a final settlement, except that with the court’s approval the fiduciary may, in lieu of such publication, send a written notice thereof to all unpaid creditors and distributees, which notice shall be mailed at least 10 days before the date of the hearing. OAG 78-147 .

Research References and Practice Aids

Kentucky Bench & Bar.

Ratliff, Kentucky Probate — A Simple Overview, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 16.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Final Settlement and Order, Form 233.17.

Caldwell’s Kentucky Form Book, 5th Ed., Final Settlement and Order Following Proposed Final Settlement, Form 233.26.

Caldwell’s Kentucky Form Book, 5th Ed., Motion of Executor for Discharge, Form 234.12.

Caldwell’s Kentucky Form Book, 5th Ed., Order Discharging Administrator, Form 234.14.

395.630. Exceptions — Confirmation — Recording — Effect as evidence.

At the hearing, if no exceptions are filed, the report, if made according to law, shall be approved and recorded. If exceptions are filed, other evidence besides that reported may be heard, and the court shall upon the whole case, reject, confirm, alter or amend the report, and, if confirmed, order it to be recorded. The vouchers accompanying the report shall not be recorded, but must be carefully kept on file with the report in the clerk’s office. Any new evidence given in court must be electronically recorded and filed with the report. Settlements so made and recorded shall be prima facie evidence between the parties interested.

History. Enact. Acts 1976 (Ex. Sess.), ch. 14, § 374, effective January 2, 1978.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Order Confirming Periodic/Final Settlement of Guardian, Form 261.10.

395.635. Certification of list of fiduciaries delinquent in accounting — Notice — Fees.

It shall be the duty of the clerk to report in writing to the judge once each month the names and addresses of all fiduciaries who have during the previous calendar month become delinquent in filing an inventory or settlement. The judge shall notify by mail such delinquent fiduciaries and shall warn them of the penalties provided by law. If the clerk shall fail to report such delinquents it shall be the duty of the judge to secure a list of same from the court records. There shall be assessed against each delinquent fiduciary a fee of one dollar ($1) for the preparation of said list and the mailing of said notice.

History. Enact. Acts 1976 (Ex. Sess.), ch. 14, § 375, effective January 2, 1978.

395.640. Sureties of fiduciaries, inquiry into solvency of — Additional surety.

The district judge shall at least once each year carefully inquire into the solvency of all the sureties upon the bond of each fiduciary, and if there is reason to believe that any bond is not amply sufficient to protect those interested, he shall at once give notice to the fiduciary that a new bond, or additional surety on the old one, is required, and upon the failure of the fiduciary to give the required bond or surety within a reasonable time fixed by the court, the court shall remove him.

History. Enact. Acts 1976 (Ex. Sess.), ch. 14, § 376, effective January 2, 1978.

NOTES TO DECISIONS

1.Liability of District Judge.

Neither this section nor KRS 62.060 contains provisions which make the District Judge personally liable for failing to require a new bond or additional surety on the old one or failing to fix the bond in a penal sum which is less than the estimated value of the estate or failing to, when it appears to be in the interest of the obligee, increase the penal sum of the bond or require a renewal thereof with other or additional sureties. Vaughn v. Webb, 911 S.W.2d 273, 1995 Ky. App. LEXIS 197 (Ky. Ct. App. 1995).

395.645. Clerk to record settlements and reports.

When the court directs, settlements of the accounts of fiduciaries made before and reported by any trial commissioner, and all reports of estates or funds received or disbursed, under order of the court, by its trial commissioner, after they have been confirmed by the court, shall be recorded by the clerk of the court in a book to be provided for that purpose. The vouchers accompanying the settlements or reports shall not be recorded.

History. Enact. Acts 1976 (Ex. Sess.), ch. 14, § 377, effective January 2, 1978; 1978, ch. 12, § 4, effective June 17, 1978.

395.650. Circuit clerk to file certificate of settlement.

Where fiduciaries appointed in the District Court are required to make settlement in the Circuit Court, the circuit clerk shall make and file a certificate of each approved settlement, showing the number and style of the case, the number of the file box in which the suit may be found in the circuit clerk’s office, before whom made, when approved by the court and whether it is a final or partial settlement.

History. Enact. Acts 1976 (Ex. Sess.), ch. 14, § 378, effective January 2, 1978; 1978, ch. 12, § 5, effective June 17, 1978.

Legislative Research Commission Note.

This section was amended by Acts 1978, ch. 12, § 5 and 1978, ch. 384, § 116 which conflict and cannot be compiled together. Chapter 12 prevails over ch. 384 (Reviser’s bill) and thus the section is compiled as amended by chapter 12. See KRS 7.136(3).

NOTES TO DECISIONS

Cited:

Lee v. Porter, 598 S.W.2d 465, 1980 Ky. App. LEXIS 311 (Ky. Ct. App. 1980).

395.655. Settlement of accounts of fiduciaries — Jurisdiction.

The accounts of committees may be settled in the same manner, and the settlements shall have the same effect, as prescribed by KRS 395.600 and 395.640 . The District Court of the county in which the committee is appointed shall have the jurisdiction of making the settlements.

History. Enact. Acts 1976 (Ex. Sess.), ch. 14, § 379, effective January 2, 1978; 2014, ch. 25, § 117, effective July 15, 2014.

395.657. Trial commissioner may make settlement.

Any duty required of the District Judge under KRS 395.600 to 395.655 may, if authorized by rules of the Supreme Court, be performed by the trial commissioner appointed pursuant to KRS 24A.100 .

History. Enact. Acts 1978, ch. 12, § 6, effective June 17, 1978.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Periodic/Final Settlement of Guardian/Conservator for Minor/Disabled Person (AOC 856), Form 261.09.

395.660. Compensation of special commissioner. [Repealed.]

Compiler’s Notes.

This section (Acts 1976 (Ex. Sess.), ch. 14, § 394) was repealed by Acts 1978, ch. 12, § 7, effective June 17, 1978.

Penalties

395.990. Penalties.

Any fiduciary failing, without good cause therefor, to file his inventory or account as required by notice given pursuant to KRS 395.255 shall be fined by the court, for each day he neglects or refuses after the date fixed in said notice, the sum of ten dollars ($10), to be collected by rule or other process.

History. 3857: amend. Acts 1942, ch. 167, §§ 12, 24.

NOTES TO DECISIONS

1.Notice.

The penalty provided for in this section is conditioned upon a notice being given as required by KRS 395.255 . Hill v. Roberts, 311 S.W.2d 569, 1958 Ky. LEXIS 212 ( Ky. 1958 ).

Where executrix-fiduciary under will leaving residue of estate to mental incompetent and remainder to appellants failed to file periodic settlements as required by KRS 25.175 (repealed), she could not be charged with a penalty of $10.00 for each day under this section, since no notice was given as required by KRS 395.255 . Hill v. Roberts, 311 S.W.2d 569, 1958 Ky. LEXIS 212 ( Ky. 1958 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Motion and Order for Extension of Time to File Inventory, Form 233.15.

Caldwell’s Kentucky Form Book, 5th Ed., Periodic/Final Settlement of Guardian/Conservator for Minor/Disabled Person (AOC 856), Form 261.09.

CHAPTER 395A Revised Uniform Fiduciary Access to Digital Assets Act.

HISTORY: 2020 ch. 63, § 1, effective July 15, 2020.

395A.010. Short title.

KRS 395A.010 to 395A.180 may be cited as the Revised Uniform Fiduciary Access to Digital Assets Act (2015).

HISTORY: 2020 ch. 63, § 18, effective July 15, 2020.

395A.020. Definitions for chapter.

As used in this chapter:

  1. “Account” means an arrangement under a terms-of-service agreement in which a custodian carries, maintains, processes, receives, or stores a digital asset of the user or provides goods or services to the user;
  2. “Agent” means an attorney-in-fact granted authority under a durable or nondurable power of attorney;
  3. “Carries” means engages in the transmission of an electronic communication;
  4. “Catalogue of electronic communications” means information that identifies each person with which a user has had an electronic communication, the time and date of the communication, and the electronic address of the person;
  5. “Conservator” means a person appointed by a court to manage the estate of a living individual. The term includes a limited conservator;
  6. “Content of an electronic communication” means information concerning the substance or meaning of the communication which:
    1. Has been sent or received by a user;
    2. Is in electronic storage by a custodian providing an electronic communication service to the public or is carried or maintained by a custodian providing a remote computing service to the public; and
    3. Is not readily accessible to the public;
  7. “Court” means District Court;
  8. “Custodian” means a person that carries, maintains, processes, receives, or stores a digital asset of a user;
  9. “Designated recipient” means a person chosen by a user using an online tool to administer digital assets of the user;
  10. “Digital asset” means an electronic record in which an individual has a right or interest. The term does not include an underlying asset or liability unless the asset or liability is itself an electronic record;
  11. “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities;
  12. “Electronic communication” has the meaning set forth in 18 U.S.C. sec. 2510(12) , as amended;
  13. “Electronic communication service” means a custodian that provides to a user the ability to send or receive an electronic communication;
  14. “Fiduciary” means an original, additional, or successor personal representative, conservator, agent, or trustee;
  15. “Information” means data, text, images, videos, sounds, codes, computer programs, software, databases, or the like;
  16. “Online tool” means an electronic service provided by a custodian that allows the user, in an agreement distinct from the terms-of-service agreement between the custodian and user, to provide directions for disclosure or nondisclosure of digital assets to a third person;
  17. “Person” means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal entity;
  18. “Personal representative” means an executor, administrator, special administrator, or person that performs substantially the same function under law of this state other than this chapter;
  19. “Power of attorney” means a record that grants an agent authority to act in the place of a principal;
  20. “Principal” means an individual who grants authority to an agent in a power of attorney;
  21. “Protected person” means an individual for whom a conservator has been appointed. The term includes an individual for whom an application for the appointment of a conservator is pending;
  22. “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form;
  23. “Remote computing service” means a custodian that provides to a user computer-processing services or the storage of digital assets by means of an electronic communications system, as defined in 18 U.S.C. sec. 2510(14) , as amended;
  24. “Terms of service agreement” means an agreement that controls the relationship between a user and a custodian;
  25. “Trustee” means a fiduciary with legal title to property under an agreement or declaration that creates a beneficial interest in another. The term includes a successor trustee;
  26. “User” means a person that has an account with a custodian; and
  27. “Will” includes a codicil, testamentary instrument that only appoints an executor, and instrument that revokes or revises a testamentary instrument.

HISTORY: 2020 ch. 63, § 1, effective July 15, 2020.

395A.030. Applicability.

  1. This chapter applies to:
    1. A fiduciary acting under a will or power of attorney executed before, on, or after July 15, 2020;
    2. A personal representative acting for a decedent who died before, on, or after July 15, 2020;
    3. A conservatorship proceeding commenced before, on, or after July 15, 2020; and
    4. A trustee acting under a trust created before, on, or after July 15, 2020.
  2. This chapter applies to a custodian if the user resides in this state or resided in this state at the time of the user’s death.
  3. This chapter does not apply to a digital asset of an employer used by an employee in the ordinary course of the employer’s business.

HISTORY: 2020 ch. 63, § 2, effective July 15, 2020.

395A.040. User direction for disclosure of digital assets.

  1. A user may use an online tool to direct the custodian to disclose to a designated recipient or not to disclose some or all of the user’s digital assets, including the content of electronic communications. If the online tool allows the user to modify or delete a direction at all times, a direction regarding disclosure using an online tool overrides a contrary direction by the user in a will, trust, power of attorney, or other record.
  2. If a user has not used an online tool to give direction under subsection (1) of this section or if the custodian has not provided an online tool, the user may allow or prohibit in a will, trust, power of attorney, or other record, disclosure to a fiduciary of some or all of the user’s digital assets, including the content of electronic communications sent or received by the user.
  3. A user’s direction under subsection (1) or (2) of this section overrides a contrary provision in a terms-of-service agreement that does not require the user to act affirmatively and distinctly from the user’s assent to the terms of service.

HISTORY: 2020 ch. 63, § 3, effective July 15, 2020.

395A.050. Terms-of-service agreement.

  1. This chapter does not change or impair a right of a custodian or a user under a terms-of-service agreement to access and use digital assets of the user.
  2. This chapter does not give a fiduciary or designated recipient any new or expanded rights other than those held by the user for whom, or for whose estate, the fiduciary or designated recipient acts or represents.
  3. A fiduciary’s or designated recipient’s access to digital assets may be modified or eliminated by a user, by federal law, or by a terms-of-service agreement if the user has not provided direction under KRS 395A.040 .

HISTORY: 2020 ch. 63, § 4, effective July 15, 2020.

395A.060. Procedure for disclosing digital assets.

  1. When disclosing digital assets of a user under this chapter, the custodian may at its sole discretion:
    1. Grant a fiduciary or designated recipient full access to the user’s account;
    2. Grant a fiduciary or designated recipient partial access to the user’s account sufficient to perform the tasks with which the fiduciary or designated recipient is charged; or
    3. Provide a fiduciary or designated recipient a copy in a record of any digital asset that, on the date the custodian received the request for disclosure, the user could have accessed if the user were alive and had full capacity and access to the account.
  2. A custodian may assess a reasonable administrative charge for the cost of disclosing digital assets under this chapter, unless the user would have had access to those digital assets for free or for no additional charge.
  3. A custodian need not disclose under this chapter a digital asset deleted by a user.
  4. If a user directs or a fiduciary requests a custodian to disclose under this chapter some, but not all, of the user’s digital assets, the custodian need not disclose the assets if segregation of the assets would impose an undue burden on the custodian. If the custodian believes the direction or request imposes an undue burden, the custodian or fiduciary may seek an order from the court to disclose:
    1. A subset limited by date of the user’s digital assets;
    2. All of the user’s digital assets to the fiduciary or designated recipient;
    3. None of the user’s digital assets; or
    4. All of the user’s digital assets to the court for review in camera.

HISTORY: 2020 ch. 63, § 5, effective July 15, 2020; 2021 ch. 93, § 1, effective June 29, 2021.

395A.070. Disclosure of content of electronic communications of deceased user.

If a deceased user consented or a court directs disclosure of the contents of electronic communications of the user, the custodian shall disclose to the personal representative of the estate of the user the content of an electronic communication sent or received by the user if the representative gives the custodian:

  1. A written request for disclosure in physical or electronic form;
  2. A certified copy of the death certificate of the user;
  3. A certified copy of the order of appointment of the personal representative, an order dispensing with administration pursuant to KRS 395.455 , or other court order giving access to the personal representative;
  4. Unless the user provided direction using an online tool, a copy of the user’s will, trust, power of attorney, or other record evidencing the user’s consent to disclosure of the content of electronic communications; and
  5. If requested by the custodian:
    1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account;
    2. Evidence linking the account to the user; or
    3. A finding by the court that:
      1. The user had a specific account with the custodian, identifiable by the information specified in paragraph (a) of this subsection;
      2. Disclosure of the content of electronic communications of the user would not violate 18 U.S.C. secs. 2701 et seq., as amended, 47 U.S.C. sec. 222 , as amended, or other applicable law;
      3. Unless the user provided direction using an online tool, the user consented to disclosure of the content of electronic communications; or
      4. Disclosure of the content of electronic communications of the user is reasonably necessary for administration of the estate.

HISTORY: 2020 ch. 63, § 6, effective July 15, 2020.

395A.080. Disclosure of other digital assets of deceased user.

Unless the user prohibited disclosure of digital assets or the court directs otherwise, a custodian shall disclose to the personal representative of the estate of a deceased user a catalogue of electronic communications sent or received by the user and digital assets, other than the content of electronic communications, of the user, if the representative gives the custodian:

  1. A written request for disclosure in physical or electronic form;
  2. A certified copy of the death certificate of the user;
  3. A certified copy of the order of appointment of the personal representative, an order dispensing with administration pursuant to KRS 395.455 , or other court order giving access to the personal representative; and
  4. If requested by the custodian:
    1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account;
    2. Evidence linking the account to the user;
    3. An affidavit stating that disclosure of the user’s digital assets is reasonably necessary for administration of the estate; or
    4. A finding by the court that:
      1. The user had a specific account with the custodian, identifiable by the information specified in paragraph (a) of this subsection; or
      2. Disclosure of the user’s digital assets is reasonably necessary for administration of the estate.

HISTORY: 2020 ch. 63, § 7, effective July 15, 2020.

395A.090. Disclosure of content of electronic communications of principal.

To the extent a power of attorney expressly grants an agent authority over the content of electronic communications sent or received by the principal and unless directed otherwise by the principal or the court, a custodian shall disclose to the agent the content if the agent gives the custodian:

  1. A written request for disclosure in physical or electronic form;
  2. An original or copy of the power of attorney expressly granting the agent authority over the content of electronic communications of the principal;
  3. A certification by the agent, under penalty of perjury, that the power of attorney is in effect; and
  4. If requested by the custodian:
    1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the principal’s account; or
    2. Evidence linking the account to the principal.

HISTORY: 2020 ch. 63, § 8, effective July 15, 2020.

395A.100. Disclosure of other digital assets of principal.

Unless otherwise ordered by the court, directed by the principal, or provided by a power of attorney, a custodian shall disclose to an agent with specific authority over digital assets or general authority to act on behalf of a principal a catalogue of electronic communications sent or received by the principal and digital assets, other than the content of electronic communications, of the principal if the agent gives the custodian:

  1. A written request for disclosure in physical or electronic form;
  2. An original or a copy of the power of attorney that gives the agent specific authority over digital assets or general authority to act on behalf of the principal;
  3. A certification by the agent, under penalty of perjury, that the power of attorney is in effect; and
  4. If requested by the custodian:
    1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the principal’s account; or
    2. Evidence linking the account to the principal.

HISTORY: 2020 ch. 63, § 9, effective July 15, 2020.

395A.110. Disclosure of digital assets held in trust when trustee is original user.

Unless otherwise ordered by the court or provided in a trust, a custodian shall disclose to a trustee that is an original user of an account any digital asset of the account held in trust, including a catalogue of electronic communications of the trustee and the content of electronic communications.

HISTORY: 2020 ch. 63, § 10, effective July 15, 2020.

395A.120. Disclosure of contents of electronic communications held in trust when trustee is not original user.

Unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian shall disclose to a trustee that is not an original user of an account the content of an electronic communication sent or received by an original or successor user and carried, maintained, processed, received, or stored by the custodian in the account of the trust if the trustee gives the custodian:

  1. A written request for disclosure in physical or electronic form;
  2. A certified copy of the trust instrument or a certification of the trust under KRS 386B.10-120 that includes consent to disclosure of the content of electronic communications to the trustee;
  3. A certification by the trustee, under penalty of perjury, that the trust exists and the trustee is a currently acting trustee of the trust; and
  4. If requested by the custodian:
    1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust’s account; or
    2. Evidence linking the account to the trust.

HISTORY: 2020 ch. 63, § 11, effective July 15, 2020.

395A.130. Disclosure of other digital assets held in trust when trustee is not original user.

Unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian shall disclose, to a trustee that is not an original user of an account, a catalogue of electronic communications sent or received by an original or successor user and stored, carried, or maintained by the custodian in an account of the trust and any digital assets, other than the content of electronic communications, in which the trust has a right or interest if the trustee gives the custodian:

  1. A written request for disclosure in physical or electronic form;
  2. A certified copy of the trust instrument or a certification of the trust under KRS 386B.10-120 ;
  3. A certification by the trustee, under penalty of perjury, that the trust exists and the trustee is a currently acting trustee of the trust; and
  4. If requested by the custodian:
    1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust’s account; or
    2. Evidence linking the account to the trust.

HISTORY: 2020 ch. 63, § 12, effective July 15, 2020.

395A.140. Disclosure of digital assets to conservator of protected person.

  1. After an opportunity for a hearing under KRS Chapter 387, the court may grant a conservator access to the digital assets of a protected person.
  2. Unless otherwise ordered by the court or directed by the user, a custodian shall disclose to a conservator the catalogue of electronic communications sent or received by a protected person and any digital assets, other than the content of electronic communications, in which the protected person has a right or interest if the conservator gives the custodian:
    1. A written request for disclosure in physical or electronic form;
    2. A certified copy of the court order that gives the conservator authority over the digital assets of the protected person; and
    3. If requested by the custodian:
      1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the account of the protected person; or
      2. Evidence linking the account to the protected person.
  3. A conservator with general authority to manage the assets of a protected person may request a custodian of the digital assets of the protected person to suspend or terminate an account of the protected person for good cause. A request made under this section must be accompanied by a certified copy of the court order giving the conservator authority over the protected person’s property.

HISTORY: 2020 ch. 63, § 13, effective July 15, 2020.

395A.150. Fiduciary duty and authority.

  1. The legal duties imposed on a fiduciary charged with managing tangible property apply to the management of digital assets, including:
    1. The duty of care;
    2. The duty of loyalty; and
    3. The duty of confidentiality.
  2. A fiduciary’s or designated recipient’s authority with respect to a digital asset of a user:
    1. Except as otherwise provided in KRS 395A.040 , is subject to the applicable terms of service;
    2. Is subject to other applicable law, including copyright law;
    3. In the case of a fiduciary, is limited by the scope of the fiduciary’s duties; and
    4. May not be used to impersonate the user.
  3. A fiduciary with authority over the property of a decedent, protected person, principal, or settlor has the right to access any digital asset in which the decedent, protected person, principal, or settlor had a right or interest and that is not held by a custodian or subject to a terms-of-service agreement.
  4. A fiduciary acting within the scope of the fiduciary’s duties is an authorized user of the property of the decedent, protected person, principal, or settlor for the purpose of applicable computer fraud and unauthorized computer access laws, including KRS 434.840 to 434.860 .
  5. A fiduciary with authority over the tangible, personal property of a decedent, protected person, principal, or settlor:
    1. Has the right to access the property and any digital asset stored in it; and
    2. Is an authorized user for the purpose of computer fraud and unauthorized computer access laws, including KRS 434.840 to 434.860 .
  6. A custodian may disclose information in an account to a fiduciary of the user when the information is required to terminate an account used to access digital assets licensed to the user.
  7. A fiduciary of a user may request a custodian to terminate the user’s account. A request for termination must be in writing, in either physical or electronic form, and accompanied by:
    1. If the user is deceased, a certified copy of the death certificate of the user;
    2. A certified copy of the order of appointment of the personal representative, the order dispensing with administration pursuant to KRS 395.455 , power of attorney, trust, or other court order giving the fiduciary authority over the account; and
    3. If requested by the custodian:
      1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account;
      2. Evidence linking the account to the user; or
      3. A finding by the court that the user had a specific account with the custodian, identifiable by the information specified in subparagraph 1. of this paragraph.

HISTORY: 2020 ch. 63, § 14, effective July 15, 2020.

395A.160. Custodian compliance and authority.

  1. Not later than sixty (60) days after receipt of the information required under KRS 395A.070 to 395A.150 , a custodian shall comply with a request under this chapter from a fiduciary or designated recipient to disclose digital assets or terminate an account. If the custodian fails to comply, the fiduciary or designated recipient may apply to the court for an order directing compliance.
  2. An order under subsection (1) of this section directing compliance shall contain a finding that compliance is not in violation of 18 U.S.C. sec. 2702 , as amended.
  3. A custodian may notify the user that a request for disclosure or to terminate an account was made under this chapter.
  4. A custodian may deny a request under this chapter from a fiduciary or designated recipient for disclosure of digital assets or to terminate an account, if the custodian is aware of any lawful access to the account following the receipt of the fiduciary’s request.
  5. This chapter does not limit a custodian’s ability to obtain or require a fiduciary or designated recipient requesting disclosure or termination under this chapter to obtain a court order which:
    1. Specifies that an account belongs to the protected person or principal;
    2. Specifies that there is sufficient consent from the protected person or principal to support the requested disclosure; and
    3. Contains a finding required by law other than this chapter.
  6. A custodian and its officers, employees, and agents are immune from liability for an act or omission done in good faith in compliance with this chapter.

HISTORY: 2020 ch. 63, § 15, effective July 15, 2020.

395A.170. Uniformity of application and construction.

In applying and construing this uniform act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

HISTORY: 2020 ch. 63, § 16, effective July 15, 2020.

395A.180. Relation to Electronic Signatures in Global and National Commerce Act.

This chapter modifies, limits, or supersedes the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. secs. 7001 et seq., but does not modify, limit, or supersede Section 101(c) of that act, codified as 15 U.S.C. sec. 7001(c) , or authorize electronic delivery of any of the notices described in Section 103(b) of that act, codified as 15 U.S.C. sec. 7003(b) .

HISTORY: 2020 ch. 63, § 17, effective July 15, 2020.

CHAPTER 396 Claims Against Decedents’ Estates

396.005. Publication of notice to creditors — Posting of notice in case of small estates. [Repealed.]

Compiler’s Notes.

This section (Acts 1944, ch. 115, § 1) was repealed by Acts 1958, ch. 42, § 29.

396.010. Verification of claims required — Exception. [Repealed.]

Compiler’s Notes.

This section (3870, 3871, 3874; amend. Acts 1970, ch. 262, § 1) was repealed by Acts 1988, ch. 90, § 32, effective July 15, 1988.

396.011. Presentation of claims against estate — Time limitations — Exceptions.

  1. All claims against a decedent’s estate which arose before the death of the decedent, excluding claims of the United States, the State of Kentucky and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, if not barred earlier by other statute of limitations, are barred against the estate, the personal representative, and the heirs and devisees, unless presented within six (6) months after the appointment of the personal representative, or where no personal representative has been appointed, within two (2) years after the decedent’s death.
  2. Nothing in this section shall affect or prevent:
    1. To the extent of the security only, any proceeding to enforce any mortgage, pledge, lien or other security interest securing an obligation of the decedent or upon property of the estate; or
    2. To the limits of the insurance protection only, any proceeding to establish liability of the decedent or the personal representative for which he is protected by liability insurance.

History. Enact. Acts 1988, ch. 90, § 6, effective July 15, 1988; 2020 ch. 25, § 8, effective July 15, 2020; 2021 ch. 71, § 1, effective June 29, 2021.

NOTES TO DECISIONS

1.Applicability.

Niece argued that heirs’ claims were time-barred under KRS 396.011 because they were not brought within six months; however, the time provisions of that statute apply only to claims that arose before the death of the decedent, and in this case, the claim did not arise until the sister died, and thus the statute was inapplicable. Hoskins v. Beatty, 343 S.W.3d 639, 2011 Ky. App. LEXIS 165 (Ky. Ct. App. 2011).

Letter from an attorney who was a decedent’s ex-son-in-law was a proper notice of disallowance because it clearly and unequivocally disputed, rejected, and disallowed a claim brought by the decedent’s former spouse, and because it substantially complied with KRS 396.055(1), as the attorney was acting as an agent on the behalf of the estate’s personal representative. However, the former spouse’s claim was not barred because the notice of disallowance failed to include the warning language mandated by KRS 396.055(1), and because the former spouse filed her petition in the circuit court within a reasonable time. Blackwell v. Blackwell, 372 S.W.3d 874, 2012 Ky. App. LEXIS 114 (Ky. Ct. App. 2012).

Action filed against the personal representative of an estate under KRS 396.055 disputing the disallowance of a claim is timely filed if brought within the original six-month presentation period set forth in KRS 396.011(1). Blackwell v. Blackwell, 372 S.W.3d 874, 2012 Ky. App. LEXIS 114 (Ky. Ct. App. 2012).

When the mother of a disabled child sued the estate of the child’s father regarding various statutory violations in the handling of the estate which allegedly resulted in denying the child the opportunity to present a child support claim against the estate, the time limitations in KRS 396.011 for filing a claim against an estate did not apply because those limitations only applied when probate was properly filed. Thompson v. Porter, 2012 Ky. App. LEXIS 248 (Ky. Ct. App. Nov. 30, 2012), op. withdrawn, sub. op., 2013 Ky. App. Unpub. LEXIS 418 (Ky. Ct. App. May 24, 2013).

Court of Appeals erred in affirming a circuit court’s dismissal of a creditor’s claim against a decedent’s heirs because the creditor was a creditor of the decedent and his estate where he filed his tort action prior to the decedent’s death, timely revived the action against the estate administrator, proceeded to obtain a judgment in that action, and filed a judgment lien, which established his status as a creditor of the decedent’s estate and entitlement to a remedy. Gregory v. Hardgrove, 562 S.W.3d 911, 2018 Ky. LEXIS 523 ( Ky. 2018 ).

Because plaintiff’s tort claim against a deceased driver was clearly barred by Ky. Rev. Stat. Ann. § 304.39-230 (6), Ky. Rev. Stat. Ann. § 396.011 was inapplicable. Williams v. Hawkins, 594 S.W.3d 189, 2020 Ky. LEXIS 9 ( Ky. 2020 ).

Cited in:

DeMoisey v. River Downs Inv. Co., 159 S.W.3d 820, 2005 Ky. App. LEXIS 37 (Ky. Ct. App. 2005).

Research References and Practice Aids

Cross-References.

Administration of nonresident’s personal estate, KRS 395.260 .

Administration of trusts and estates of persons under disability, KRS Chs. 386 to 388.

Banks and trust companies, 286.3-010 to 286.3-695 .

Compromise of claims against decedent’s estate, KRS 395.240 .

Contracts, KRS Chs. 371, 372.

Credit, KRS Chs. 376 to 380.

Descent and distribution, KRS Ch. 391.

Dispensing with administration, KRS 395.450 to 395.500 .

Dower and curtesy, KRS Ch. 392.

Escheats, KRS Ch. 393.

Exemption in favor of surviving spouse and infant children, KRS 391.030 .

Inheritance and estate taxes, KRS Chapter 140.

Insolvent estates, claims against, KRS 453.210 .

Legal notices, KRS Ch. 424.

Personal representatives, KRS Ch. 395.

Property ownership and conveyance, KRS Chs. 381 to 385.

Refund to heir when debts are proved after inheritance tax deducted from his share, KRS 140.290 .

Sale of personal property of estate, to pay debts, KRS 395.200 .

Settlement of estates of deceased persons, KRS 395.510 to 395.550 .

Simultaneous death act, KRS Ch. 397.

Wills, KRS Ch. 394.

Kentucky Bench & Bar.

Gibson & Traughber, Death Taxes: Confusion Reigns, Volume 74, No. 6, November 2010, Ky. Bench & Bar 6.

Kentucky Law Journal.

Due Process and Kentucky’s Non-Claim Statutes: A Call for Legislative Revision, 91 Ky. L.J. 231 (2001-02).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Written Statement of Claim Against Estate, Form 234.09.

396.012. Publication of notice by clerk of probate court and actual notice by personal representative regarding time limitations for filing claims. [Repealed]

HISTORY: 2020 ch. 25, § 7, effective July 15, 2020; repealed by 2021 ch. 71, § 2, effective June 29, 2021.

396.015. Method of presentation of claims.

Claims against a decedent’s estate shall be presented as follows:

  1. The claimant may deliver or mail to the personal representative a written statement of the claim indicating its basis, the name and address of the claimant, and the amount claimed, or may file a written statement of the claim, in the form prescribed by rule, with the clerk of the court. If presentment shall be made by filing a written statement of the claim with the clerk of the court, the claimant shall certify as provided in the rules of civil procedure that a copy of the written statement has been given or mailed to the personal representative and his attorney. The claim shall be deemed presented on the first to occur of receipt of the written statement of claim by the personal representative, or the filing of the claim with the court. If a claim is not yet due, the date when it will become due shall be stated. If the claim is contingent or unliquidated, the nature of the uncertainty shall be stated. If the claim is secured, the security shall be described. Failure to describe correctly the security, the nature of any uncertainty, and the due date of a claim not yet due does not invalidate the presentation made.
  2. In an action pending against the decedent at the time of his death, which action survives at law, the substitution of the personal representative for the decedent, or motion therefor, shall constitute the presentation of a claim. Such claim shall be deemed to have been presented from the time of substitution, or motion therefor.

History. Enact. Acts 1988, ch. 90, § 7, effective July 15, 1988.

NOTES TO DECISIONS

1.Application.

Where the plaintiff alleged that her ex-husband failed, before his death, to take the necessary steps for her to receive his National Guard survivor benefits and that a qualified domestic relations order had been issued to enforce her rights to receive a portion of his military retirement, any breach of duty occurred prior to the ex-husband’s death and, therefore, the claim arose prior to his death and was subject to both the presentation requirement in KRS 396.015 and the six (6) month statute of limitations in KRS 396.011 . Underwood v. Underwood, 999 S.W.2d 716, 1999 Ky. App. LEXIS 59 (Ky. Ct. App. 1999).

Where the plaintiff alleged that, under certain circumstances, maintenance paid by her ex-husband was to continue after his death and that the cessation of maintenance occurred after his death, the claim did not arise out of any action taken by her ex-husband during his life and, therefore, the claim did not arise prior to his death and was not subject to either the presentation requirement in KRS 396.015 or the six (6) month statute of limitations in KRS 396.011 . Underwood v. Underwood, 999 S.W.2d 716, 1999 Ky. App. LEXIS 59 (Ky. Ct. App. 1999).

Court of Appeals erred in affirming a circuit court’s dismissal of a creditor’s claim against a decedent’s heirs because the creditor was a creditor of the decedent and his estate where he filed his tort action prior to the decedent’s death, timely revived the action against the estate administrator, proceeded to obtain a judgment in that action, and filed a judgment lien, which established his status as a creditor of the decedent’s estate and entitlement to a remedy. Gregory v. Hardgrove, 562 S.W.3d 911, 2018 Ky. LEXIS 523 ( Ky. 2018 ).

2.Pending Actions.

Although a Circuit Court retained continuing jurisdiction in a dissolution of marriage proceeding after a final order was issued, the plaintiff ex-wife was not required to revive that proceeding in order to enforce an award against the estate of her ex-husband as the proceeding was no longer pending. Underwood v. Underwood, 999 S.W.2d 716, 1999 Ky. App. LEXIS 59 (Ky. Ct. App. 1999).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Executors and Administrators, § 234.00.

Caldwell’s Kentucky Form Book, 5th Ed., Written Statement of Claim Against Estate, Form 234.09.

396.020. Action not to be brought before demand — Exception — When additional affidavit unnecessary. [Repealed.]

Compiler’s Notes.

This section (3872, 3873; trans. and amend. Acts 1952, ch. 84, §§ 1, 71) was repealed by Acts 1988, ch. 90, § 32, effective July 15, 1988.

396.025. Limitations on filing claims. [Repealed.]

Compiler’s Notes.

This section (Acts 1974, ch. 299, § 18) was repealed by Acts 1988, ch. 90, § 32, effective July 15, 1988.

396.026. Affidavit of claimant.

Upon any claim being presented in the manner described in subsection (1) of KRS 396.015 , the personal representative may require by written request mailed to the claimant, the affidavit of the claimant or other satisfactory evidence that such claim is justly due, that no payments have been made thereon, and that there are no offsets against same to the knowledge of the claimant; or if any payments have been made, or any offsets exist, that their nature and amount be shown by the evidence or stated in the affidavit.

History. Enact. Acts 1988, ch. 90, § 8, effective July 15, 1988.

NOTES TO DECISIONS

1. Effect of Request on Statutory Time Limitations.

Although an executor was permitted to request information regarding a claim filed by a creditor against a decedent’s estate, the executor was not relieved of the obligation to take some action on the claim within the statutory time period. As the executor failed to take action on the claim until he ultimately denied it two-and-a-half (21/2) years after it was filed, the passage of time resulted in an allowance of the claim. DeMoisey v. River Downs Inv. Co., 159 S.W.3d 820, 2005 Ky. App. LEXIS 37 (Ky. Ct. App. 2005).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Affidavit of Claimant, Form 234.10.

Caldwell’s Kentucky Form Book, 5th Ed., Written Statement of Claim Against Estate, Form 234.09.

396.027. Limitation on time to commence action on rejected claim. [Repealed.]

Compiler’s Notes.

This section (Acts 1980, ch. 259, § 26, effective July 15, 1980) was repealed by Acts 1988, ch. 90, § 32, effective July 15, 1988.

396.030. Interest accruing after death — When allowed. [Repealed.]

Compiler’s Notes.

This section (3884) was repealed by Acts 1988, ch. 90, § 32, effective July 15, 1988.

396.035. Limitation on commencement of action on claim.

No action shall be brought against a personal representative on a claim against decedent’s estate unless the claimant shall have first presented his claim in the manner described in KRS 396.015 . The foregoing limitation shall be in addition to that limitation on the commencement of an action against a personal representative set forth in KRS 395.270 .

History. Enact. Acts 1988, ch. 90, § 9, effective July 15, 1988.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Written Statement of Claim Against Estate, Form 234.09.

396.040. Usury and credits to be deducted before claim paid. [Repealed.]

Compiler’s Notes.

This section (3876) was repealed by Acts 1988, ch. 90, § 32, effective July 15, 1988.

396.045. Claims not barred by statutes of limitations.

  1. No claim shall be barred by a statute of limitations which would expire during the period commencing with the decedent’s death and ending six (6) months thereafter if such claim is presented within six (6) months after the decedent’s death. This subsection shall not apply with respect to any statute of limitations imposed by KRS Chapter 396.
  2. For purposes of any statute of limitations, the proper presentment of a claim under KRS 396.015 is equivalent to commencement of an action on the claim.

History. Enact. Acts 1988, ch. 90, § 10, effective July 15, 1988.

396.050. Reference to commissioner — Advertisement of. [Repealed.]

Compiler’s Notes.

This section (14a-2), was repealed by Acts 1988, ch. 90, § 32, effective July 15, 1988.

396.055. Allowance or disallowance of claims — Notice — Effect.

  1. As to claims presented in the manner described in KRS 396.015 within the time limit prescribed in KRS 396.011 , the personal representative may mail a notice to any claimant stating that the claim has been allowed or disallowed. If, after allowing or disallowing a claim, the personal representative changes his decision concerning the claim, he shall notify the claimant. The personal representative may not change a disallowance of a claim after the time for the claimant to commence an action on the claim has run and the claim has been barred. Every claim which is disallowed in whole or in part by the personal representative is barred so far as not allowed unless the claimant commences an action against the personal representative not later than sixty (60) days after the mailing of the notice of disallowance or partial allowance if the notice warns the claimant of the impending bar. Failure of the personal representative to mail notice to a claimant of action on his claim for sixty (60) days after the time for original presentation of the claim has expired has the effect of a notice of allowance, except that upon petition of the personal representative and upon notice to the claimant, the court at any time before payment of such claim may for cause shown permit the personal representative to disallow such claim.
  2. A judgment against a personal representative to enforce a claim against a decedent’s estate is an allowance of the claim.
  3. In the case of a disallowance of a claim which has not matured or which is contingent or unliquidated, the personal representative may consent to an extension of the sixty (60) day period imposed by subsection (1) of this section for the commencement of an action on a disallowed claim, or to avoid injustice, the court, on petition, may order an extension of the sixty (60) day period, but in no event shall the extension run beyond the applicable statute of limitations.

History. Enact. Acts 1988, ch. 90, § 11, effective July 15, 1988.

NOTES TO DECISIONS

Analysis

1.Application.

A claim against the executor of an estate for his conduct in regard to a lease between the decedent and the plaintiff was not subject to the deadline set out in the statute. Batson v. Clark, 980 S.W.2d 566, 1998 Ky. App. LEXIS 97 (Ky. Ct. App. 1998).

Where executor failed to timely disallow a creditor’s claim on a promissory note issued to cover an illegal horse racing debt, a Circuit Court properly held that this failure converted the debt from one that was void into one that was required to be paid. The executor’s failure to disallow the claim until more than two and a half (21/2) years after it was filed resulted in allowance of the claim under KRS 396.055(1). DeMoisey v. River Downs Inv. Co., 159 S.W.3d 820, 2005 Ky. App. LEXIS 37 (Ky. Ct. App. 2005).

Letter from an attorney who was a decedent’s ex-son-in-law was a proper notice of disallowance because it clearly and unequivocally disputed, rejected, and disallowed a claim brought by the decedent’s former spouse, and because it substantially complied with KRS 396.055(1), as the attorney was acting as an agent on the behalf of the estate’s personal representative. However, the former spouse’s claim was not barred because the notice of disallowance failed to include the warning language mandated by KRS 396.055(1), and because the former spouse filed her petition in the circuit court within a reasonable time. Blackwell v. Blackwell, 372 S.W.3d 874, 2012 Ky. App. LEXIS 114 (Ky. Ct. App. 2012).

Executor’s untimely denial of a creditor’s claim against the decedent’s estate was not excused and resulted in allowance of the claim where the executor failed to comply with KRS 396.055(1) by showing a reasonable cause for not responding to the claim within 60 days of its filing but simply attempted to show a reasonable cause for denying the claim. DeMoisey v. River Downs Inv. Co., 159 S.W.3d 820, 2005 Ky. App. LEXIS 37 (Ky. Ct. App. 2005).

Court of Appeals erred in affirming a circuit court’s dismissal of a creditor’s claim against a decedent’s heirs because the creditor was a creditor of the decedent and his estate where he filed his tort action prior to the decedent’s death, timely revived the action against the estate administrator, proceeded to obtain a judgment in that action, and filed a judgment lien, which established his status as a creditor of the decedent’s estate and entitlement to a remedy. Gregory v. Hardgrove, 562 S.W.3d 911, 2018 Ky. LEXIS 523 ( Ky. 2018 ).

2.Construction.

Proper notice of disallowance of a claim against an estate requires notification and a clear and unequivocal expression that the claim is disallowed; the word “disallow” is not required to be used in the notice, provided the notice sufficiently communicates the concept that the claim will not be honored. Blackwell v. Blackwell, 372 S.W.3d 874, 2012 Ky. App. LEXIS 114 (Ky. Ct. App. 2012).

Doctrine of substantial compliance is applied to ascertain whether a notice of disallowance of a claim against an estate has substantially complied with KRS 396.055(1). Blackwell v. Blackwell, 372 S.W.3d 874, 2012 Ky. App. LEXIS 114 (Ky. Ct. App. 2012).

Plain statutory language of KRS 396.055(1) does not suggest nor indicate the warning language is optional. As a result, without a specific inclusion of the warning language mandated by KRS 396.055(1) in a notice of disallowance, the sixty-day time limit is not enforceable. Blackwell v. Blackwell, 372 S.W.3d 874, 2012 Ky. App. LEXIS 114 (Ky. Ct. App. 2012).

3.Attorney’s Fees.

The lower court’s judgment denying the estate’s motion for attorney fees and costs for prosecuting an appeal on the basis of no good cause for prosecuting the appeal was error; whether the estate should have denied the alleged creditor’s claim for gambling losses incurred by the decedent within 60 days pursuant to KRS 396.055(1) even though the claim was void pursuant to KRS 372.010 as an attempt to recover on an agreement based on gambling was an issue of novel impression and, thus, there was good cause to prosecute the appeal. Estate of DeMoisey v. River Downs Inv. Co., 231 S.W.3d 785, 2007 Ky. App. LEXIS 258 (Ky. Ct. App. 2007).

4.Time Limitations.

Action filed against the personal representative of an estate under KRS 396.055 disputing the disallowance of a claim is timely filed if brought within the original six-month presentation period set forth in KRS 396.011(1). Blackwell v. Blackwell, 372 S.W.3d 874, 2012 Ky. App. LEXIS 114 (Ky. Ct. App. 2012).

Notes to Unpublished Decisions

1.Application.

Unpublished decision: District court abused its discretion in finding that the estate did not have sufficient cause for the estate’s delay in disallowing the claim filed by the claimants, as the complexity in investigating and determining whether the claim should be disallowed provided a sufficient excuse for the delay in disallowing the claim beyond the 60-day statutory time period normally allowed for denying or allowing a claim against the estate. Patterson v. Estate of Boone, 150 S.W.3d 58, 2003 Ky. App. LEXIS 308 (Ky. Ct. App. 2003).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Disallowance of Claim, Form 234.11.

396.060. Liability of heirs and devisees — Joint action against them and representative. [Repealed.]

Compiler’s Notes.

This section (2084 to 2086) was repealed by Acts 1988, ch. 90, § 32, effective July 15, 1988.

396.065. Waiver of defense of limitations.

If an estate is solvent the personal representative, with the consent of all successors of the decedent whose interests would be affected, may waive any defense of limitations available to the estate. If the defense is not waived, no claim which was barred by any statute of limitations at the time of the decedent’s death shall be allowed or paid.

History. Enact. Acts 1988, ch. 90, § 12, effective July 15, 1988.

396.070. Liability of representative, heir and devisee of heir or devisee. [Repealed.]

Compiler’s Notes.

This section (2088) was repealed by Acts 1988, ch. 90, § 32, effective July 15, 1988.

396.075. Payment of claims.

  1. Upon the expiration of six (6) months from the date of his appointment, the personal representative may proceed to pay the claims allowed against the estate in the order of priority prescribed, after making appropriate provision for exemptions and allowances provided by law, for claims already presented which have not yet been allowed and for unbarred claims which may yet be presented, including costs and expenses of administration. By petition to the court in a proceeding for the purpose, a claimant whose claim has been allowed but not paid as provided herein may secure an order directing the personal representative to pay the claim to the extent that funds of the estate are available for the payment.
  2. The personal representative at any time may pay any just claim which has not been barred, with or without formal presentation, but he is personally liable to any other claimant whose claim is allowed and who is injured by such payment if:
    1. The payment was made before the expiration of the time limit stated in subsection (1) of this section and the personal representative failed to require the payee to give adequate security for the refund of any of the payment necessary to pay other claimants; or
    2. The payment was made, due to the negligence or willful fault of the personal representative, in such manner as to deprive the injured claimant of his priority.

History. Enact. Acts 1988, ch. 90, § 13, effective July 15, 1988.

NOTES TO DECISIONS

1.Generally.

The reference in KRS 396.075 to “the court” clearly pertains to the District Court, as probate matters fall within the exclusive jurisdiction of the District Court, and the allowance or disallowance of claims is not designated as an adversarial proceeding. DeMoisey v. River Downs Inv. Co., 159 S.W.3d 820, 2005 Ky. App. LEXIS 37 (Ky. Ct. App. 2005).

Notes to Unpublished Decisions

1.Procedure Regarding Claims.

Unpublished decision: Where a claim was allowed, the claimant had the right to petition the court for payment of that claim. Accordingly, there was no reason precluding the claimant from petitioning the court for a decision on the merits in a case where the estate shows cause for not taking action on a claim and the claim is then deemed disallowed, especially since the language of the relevant statutory law did not precluded such a procedure. Patterson v. Estate of Boone, 150 S.W.3d 58, 2003 Ky. App. LEXIS 308 (Ky. Ct. App. 2003).

396.080. Equitable action by creditor — Lien may be obtained. [Repealed.]

Compiler’s Notes.

This section (2089) was repealed by Acts 1988, ch. 90, § 32, effective July 15, 1988.

396.085. Interest on allowed claims.

Unless otherwise provided in any judgment against the personal representative:

  1. An allowed claim not based on a contract making a provision for interest:
    1. Shall not bear interest for the period commencing with the date of the decedent’s death and ending sixty (60) days after the time for original presentation of the claim has expired; and
    2. Shall bear interest at the legal rate after the period specified in subsection (1)(a) of this section provided the claimant has demanded the payment of interest in the written statement of the claim delivered or mailed to the personal representative or filed with the clerk of the court as provided in KRS 396.015 .
  2. An allowed claim based on a contract making a provision for interest shall bear interest from the date of the decedent’s death in accordance with the contract provision.

History. Enact. Acts 1988, ch. 90, § 14, effective July 15, 1988.

396.090. Preferred claims. [Repealed.]

Compiler’s Notes.

This section (3868; amend. Acts 1962, ch. 259; 1970, ch. 262, § 2) was repealed by Acts 1988, ch. 90, § 32, effective July 15, 1988.

396.095. Order of payment of claims.

  1. If the applicable assets of the estate are insufficient to pay all claims in full, the personal representative shall make payment of claims in the following order:
    1. Costs and expenses of administration; then
    2. Funeral expenses; then
    3. Debts and taxes with preference under federal law and other laws of this state; then
    4. All other claims.
  2. No preference shall be given in the payment of any claim over any other claim of the same class, and a matured claim shall not be entitled to a preference over unmatured claims.

History. Enact. Acts 1988, ch. 90, § 15, effective July 15, 1988.

Research References and Practice Aids

Kentucky Bench & Bar.

Ratliff, Kentucky Probate — A Simple Overview, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 16.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Probate Procedures Dispensing with Administration, § 232.00.

396.100. Liens. [Repealed.]

Compiler’s Notes.

This section (3869) was repealed by Acts 1988, ch. 90, § 32, effective July 15, 1988.

396.105. Payment of secured claim.

Payment of a secured claim shall be upon the basis of the amount allowed if the creditor surrenders his security; otherwise payment shall be upon the basis of one (1) of the following:

  1. If the creditor exhausts his security before receiving payment, unless precluded by other law, upon the amount of the claim allowed less than the fair value of the security; or
  2. If the creditor does not have the right to exhaust his security or has not done so, upon the amount of the claim allowed less the value of the security determined by converting it into money according to the terms of the agreement pursuant to which the security was delivered to the creditor, or by the creditor and personal representative by agreement, arbitration, compromise or litigation.

History. Enact. Acts 1988, ch. 90, § 16, effective July 15, 1988.

396.110. Alienation of estate — Effect of. [Repealed.]

Compiler’s Notes.

This section (2087; amend. Acts 1942, ch. 167, § 16) was repealed by Acts 1988, ch. 90, § 32, effective July 15, 1988.

396.115. Payment of contingent, unliquidated or future claims.

  1. If a claim which will mature at a future time, or a contingent or unliquidated claim, matures or becomes certain before the distribution of the estate, and if the claim has been allowed, it shall be paid in the same manner as matured and absolute claims of the same class.
  2. In other cases the personal representative or, on petition of the personal representative or the claimant in a special proceeding for the purpose, the court may provide for payment as follows:
    1. If the claimant consents, he may be paid the present or agreed value of the claim, taking any uncertainty into account;
    2. Arrangement for future payment, or possible payment, on the happening of the contingency or on liquidation may be made by creating a trust, giving a mortgage, obtaining a bond or security from a distributee, or otherwise.

History. Enact. Acts 1988, ch. 90, § 17, effective July 15, 1988.

396.120. Perishable goods sold first. [Repealed.]

Compiler’s Notes.

This section (3853) was repealed by Acts 1944, ch. 115, § 2.

396.125. Deduction of counterclaim.

In allowing a claim the personal representative may deduct any counterclaim which the estate has against the claimant. In determining a claim against an estate a court shall reduce the amount allowed by the amount of any counterclaims and, if the counterclaims exceed the claim, render a judgment against the claimant in the amount of the excess. A counterclaim, liquidated or unliquidated, may arise from a transaction other than that upon which the claim is based. A counterclaim may give rise to relief exceeding in amount or different in kind from that sought in the claim.

History. Enact. Acts 1988, ch. 90, § 18, effective July 15, 1988.

396.130. Refunding bond — Representative may require. [Repealed.]

Compiler’s Notes.

This section (3843) was repealed by Acts 1988, ch. 90, § 32, effective July 15, 1988.

396.135. Execution against estate property prohibited.

No execution may issue upon nor may any levy be made against any property of the estate under any judgment against a decedent or a personal representative, but this section shall not be construed to prevent the enforcement of mortgages, pledges or liens upon real or personal property in an appropriate proceeding.

History. Enact. Acts 1988, ch. 90, § 19, effective July 15, 1988.

396.140. Overpayment — Recovery of. [Repealed.]

Compiler’s Notes.

This section (3877) was repealed by Acts 1988, ch. 90, § 32, effective July 15, 1988. For present law see KRS 396.165 .

396.145. Compromise of claim.

When a claim against the estate has been presented in any manner, the personal representative may, if it appears for the best interest of the estate, compromise the claim, whether matured or unmatured, absolute or contingent, liquidated or unliquidated.

History. Enact. Acts 1988, ch. 90, § 20, effective July 15, 1988.

396.150. Examination of claimant. [Repealed.]

Compiler’s Notes.

This section (3875) was repealed by Acts 1988, ch. 90, § 32, effective July 15, 1988.

396.155. Payment of encumbrances.

If any assets of the estate are encumbered by mortgage, pledge, lien, or secured interest, the personal representative may pay the encumbrance or any part thereof, renew or extend any obligation secured by the encumbrance or convey or transfer the assets to the creditor in satisfaction of his lien, in whole or in part, whether or not the holder of the encumbrance has presented a claim, if it appears to be for the best interest of the estate. Payment of an encumbrance does not increase the share of the distributee entitled to the encumbered assets unless the distributee is entitled to exoneration.

History. Enact. Acts 1988, ch. 90, § 21, effective July 15, 1988.

396.160. Insolvent nonresident decedent — Payment of debts. [Repealed.]

Compiler’s Notes.

This section (3900) was repealed by Acts 1988, ch. 90, § 32, effective July 15, 1988.

396.165. Recovery of overpayment.

If a personal representative pays to a creditor an undue portion of his demand or to a distributee or devisee a part or all of his share of the estate, under a mistake as to the solvency of the estate or otherwise, he may recover from the creditor, distributee or devisee the amount of the overpayment with interest.

History. Enact. Acts 1988, ch. 90, § 22, effective July 15, 1988.

396.170. Right to pay obligations of decedent in advance of maturity. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 190) was repealed by Acts 1988, ch. 90, § 32, effective July 15, 1988.

396.175. Proportionate payment of claims.

  1. All assets of estates being administered in this state are subject to all claims, allowances and charges existing or established against the personal representative wherever appointed.
  2. If the estate either in this state or as a whole is insufficient to cover all exemptions and allowances determined by the law of the decedent’s domicile, prior charges and claims, after satisfaction of the exemptions, allowances, and charges, each claimant whose claim has been allowed either in this state or elsewhere in administrations of which the personal representative is aware, is entitled to receive payment of an equal proportion of his claim. If a preference or security in regard to a claim is allowed in another jurisdiction but not in this state, the creditor so benefited shall receive payment out of local assets only upon the balance of his claim after deducting the amount of the benefit.
  3. In case the exemptions and allowances, prior charges and claims of the entire estate exceed the total value of the portions of the estate being administered separately and this state is not the state of the decedent’s last domicile, the claims allowed in this state shall be paid their proportion if local assets are adequate for the purpose, and the balance of local assets shall be transferred to the domiciliary personal representative. If local assets are not sufficient to pay all claims allowed in this state in the amount to which they are entitled, local assets shall be marshaled so that each claim allowed in this state is paid its proportion as far as possible, after taking into account all payments on claims allowed in this state from assets in other jurisdictions.

History. Enact. Acts 1988, ch. 90, § 23, effective July 15, 1988.

396.180. Duty of personal representative of mental patient. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 65, effective June 16, 1960; 1980, ch. 188, § 285, effective July 15, 1980) was repealed by Acts 1988, ch. 90, § 32, effective July 15, 1988.

396.185. Liability of personal representative.

  1. Unless otherwise provided in the contract, a personal representative is not individually liable on a contract properly entered into in his fiduciary capacity in the course of administration of the estate unless he fails to reveal his representative capacity and identify the estate in the contract.
  2. A personal representative is individually liable for obligations arising from ownership or control of the estate or for torts committed in the course of administration of the estate only if he is personally at fault.
  3. Claims based on contracts entered into by a personal representative in his fiduciary capacity, on obligations arising from ownership or control of the estate or on torts committed in the course of estate administration may be asserted against the estate by proceeding against the personal representative in his fiduciary capacity, whether or not the personal representative is individually liable therefor.
  4. Issues of liability as between the estate and the personal representative individually may be determined in a proceeding for accounting, surcharge or indemnification or other appropriate proceeding.

History. Enact. Acts 1988, ch. 90, § 24, effective July 15, 1988.

396.195. Undischarged claim — Proceeding against distributees.

After assets of an estate have been distributed and subject to KRS 396.205 , an undischarged claim not barred may be prosecuted in a proceeding against one (1) or more distributees. No distributee shall be liable to claimants for amounts received as exempt property or allowances, or for amounts in excess of the value of his distribution as of the time of distribution. As between distributees, each shall bear the cost of satisfaction of unbarred claims as if the claim had been satisfied in the course of administration. Any distributee who shall have failed to notify other distributees of the demand made upon him by the claimant in sufficient time to permit them to join in any proceeding in which the claim was asserted against him loses his right of contribution against other distributees who have not been notified.

History. Enact. Acts 1988, ch. 90, § 25, effective July 15, 1988.

396.205. Limitation on actions not otherwise barred.

Notwithstanding any other statute to the contrary, no cause of action on any claim not otherwise barred by the provisions of KRS 396.011 and KRS 396.055(1), or any other applicable statute of limitations, shall be brought against the personal representative or against any distributee after the expiration of two (2) years from the date of the order of discharge of the personal representative. The foregoing limitation shall not preclude an action by any claimant against the personal representative or any distributee for fraud.

History. Enact. Acts 1988, ch. 90, § 26, effective July 15, 1988; 1998, ch. 420, § 2, effective July 15, 1998.

Research References and Practice Aids

Kentucky Law Journal.

Due Process and Kentucky’s Non-Claim Statutes: A Call for Legislative Revision, 91 Ky. L.J. 231 (2001-02).

CHAPTER 397 Uniform Simultaneous Death Act

397.010. No sufficient evidence of survivorship. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 79, § 1) was repealed by Acts 1998, ch. 415, § 12, effective July 15, 1998.

397.020. Survival of beneficiaries. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 79, § 2; 1966, ch. 201, § 1) was repealed by Acts 1998, ch. 415, § 12, effective July 15, 1998.

397.030. Joint tenants or tenants by the entirety. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 79, § 3; 1966, ch. 201, § 2) was repealed by Acts 1998, ch. 415, § 12, effective July 15, 1998.

397.040. Insurance policies. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 79, § 4) was repealed by Acts 1998, ch. 415, § 12, effective July 15, 1998.

397.050. Chapter not retroactive. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 79, § 5) was repealed by Acts 1998, ch. 415, § 12, effective July 15, 1998.

397.060. Chapter does not apply if decedent provides otherwise. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 79, § 6; 1966, ch. 201, § 3) was repealed by Acts 1998, ch. 415, § 12, effective July 15, 1998.

397.070. Uniformity of interpretation. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 79, § 7) was repealed by Acts 1998, ch. 415, § 12, effective July 15, 1998.

397.080. Short title. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 79, § 8) was repealed by Acts 1998, ch. 415, § 12, effective July 15, 1998.

397.1001. Definitions for chapter.

As used in this chapter, unless the context requires otherwise:

  1. “Co-owners with right of survivorship” means and includes joint tenants, tenants by the entireties, and other co-owners of property or accounts held under circumstances that entitle one (1) or more to the whole of the property or account on the death of the other or others;
  2. “Governing instrument” means a deed, will, trust, insurance or annuity policy, account with payment on death (POD) designation, pension, profit-sharing, retirement, or similar benefit plan, instrument creating or exercising a power of appointment or a power of attorney, or a donative, appointive, or nominative instrument of any other type; and
  3. “Payor” means a trustee, insurer, business entity, employer, government, governmental agency, subdivision, or instrumentality, or any other person authorized or obligated by law or a governing instrument to make payments.

History. Enact. Acts 1998, ch. 415, § 1, effective July 15, 1998.

Compiler’s Notes.

Section 13 of Acts 1998, ch. 415, stated:

“An act done before this Act’s effective date in any proceeding and any accrued right shall not be impaired by Sections 1 to 7 of this Act. If a right is acquired, extinguished, or barred upon the expiration of a prescribed period of time that has commenced to run by the provisions of any statute before this Act’s effective date, the provisions shall remain in force with respect to that right, notwithstanding Sections 1 to 7 of this Act.

Any rule of construction or presumption provided in Sections 1 to 7 of this Act shall not apply to instruments executed and multiple-party accounts opened before this Act’s effective date.

The provisions of Sections 1 to 7 of this Act shall not apply to persons who die prior to the effective date of this Act.”

Research References and Practice Aids

Comparative Legislation.

Uniform Simultaneous Death Act:

Ark Stat. Ann. §§ 61-124 — 61-130.

Ill Ann. Stat. ch. 1101/2, §§ 3-1, 3-2 (Smith-Hurd).

Ind Code Ann. §§ 29-2-14-1 — 29-2-14-8 (Burns).

Mo Ann. Stat. §§ 471.010 — 471.080 (Vernon).

Tenn Code Ann. §§ 31-3-101 — 31-3-107.

Va Code §§ 64.1-97 — 64.1-104.

W. Va Code §§ 42-5-1 — 42-5-10.

Northern Kentucky Law Forum.

Hirsh, Brain Death: Medico-Legal Fact, or Fiction, 3 N. Ky. St. L.F. 16 (1975).

Northern Kentucky Law Review.

Schneider, Recommendations for Improving Kentucky’s Inheritance Laws, 22 N. Ky. L. Rev. 317 (1995).

397.1002. Requirement of survival by one hundred twenty (120) hours.

Except as provided in KRS 397.1006 , if the title to property, the devolution of property, the right to elect an interest in property, or the right to exempt property, homestead, or family allowance depends upon an individual’s survivorship of the death of another individual, an individual who is not established by clear and convincing evidence to have survived the other individual by one hundred twenty (120) hours is deemed to have predeceased the other individual. This section shall not apply if its application would result in a taking of intestate estate by the state.

History. Enact. Acts 1998, ch. 415, § 2, effective July 15, 1998.

Compiler’s Notes.

Section 13 of Acts 1998, ch. 415, stated:

“An act done before this Act’s effective date in any proceeding and any accrued right shall not be impaired by Sections 1 to 7 of this Act. If a right is acquired, extinguished, or barred upon the expiration of a prescribed period of time that has commenced to run by the provisions of any statute before this Act’s effective date, the provisions shall remain in force with respect to that right, notwithstanding Sections 1 to 7 of this Act.

Any rule of construction or presumption provided in Sections 1 to 7 of this Act shall not apply to instruments executed and multiple-party accounts opened before this Act’s effective date.

The provisions of Sections 1 to 7 of this Act shall not apply to persons who die prior to the effective date of this Act.”

NOTES TO DECISIONS

1.Application.

The assumption of the Uniform Simultaneious Death Act does not apply to every common disaster, but only where there is insufficient evidence to establish actual survivorship; thus, the relinquishment of the possible inheritance, if actual survivorship of the heir’s decedent was proven, is sufficient consideration to support an agreement dividing the property equally between the respective heirs of a husband and wife who died in a common disaster, although, if this section were applicable, the husband’s heirs would have received the entire property. Ruckel v. Baston, 252 S.W.2d 432, 1952 Ky. LEXIS 1003 ( Ky. 1952 ).

The Uniform Simultaneious Death Act applies only to the title or devolution of property and has no application to the right to bring an action for wrongful death or to the disposition of the proceeds of such an action. McCallum v. Harris, 379 S.W.2d 438, 1964 Ky. LEXIS 238 ( Ky. 1964 ).

397.1003. Presumptions of survivorship when donative provisions of a governing instrument are affected.

Except as provided in KRS 397.1006 , for purposes of a donative provision of a governing instrument, an individual who is not established by clear and convincing evidence to have survived an event, including the death of another individual, by one hundred twenty (120) hours is deemed to have predeceased the event.

History. Enact. Acts 1998, ch. 415, § 3, effective July 15, 1998.

Compiler’s Notes.

Section 13 of Acts 1998, ch. 415, stated:

“An act done before this Act’s effective date in any proceeding and any accrued right shall not be impaired by Sections 1 to 7 of this Act. If a right is acquired, extinguished, or barred upon the expiration of a prescribed period of time that has commenced to run by the provisions of any statute before this Act’s effective date, the provisions shall remain in force with respect to that right, notwithstanding Sections 1 to 7 of this Act.

Any rule of construction or presumption provided in Sections 1 to 7 of this Act shall not apply to instruments executed and multiple-party accounts opened before this Act’s effective date.

The provisions of Sections 1 to 7 of this Act shall not apply to persons who die prior to the effective date of this Act.”

397.1004. Co-owner with right of survivorship — Requirement of survival by one hundred twenty (120) hours.

Except as provided in KRS 397.1006 :

  1. If it is not established by clear and convincing evidence that one (1) of two (2) co-owners with right of survivorship survived the other co-owner by one hundred twenty (120) hours, one-half (1/2) of the property shall pass as if one (1) had survived by one hundred twenty (120) hours and one-half (1/2) as if the other had survived by one hundred twenty (120) hours.
  2. If there are more than two (2) co-owners and it is not established by clear and convincing evidence that at least one (1) of them survived the others by one hundred twenty (120) hours, the property shall pass in the proportion that each bears to the whole number of co-owners.

History. Enact. Acts 1998, ch. 415, § 4, effective July 15, 1998.

Compiler’s Notes.

Section 13 of Acts 1998, ch. 415, stated:

“An act done before this Act’s effective date in any proceeding and any accrued right shall not be impaired by Sections 1 to 7 of this Act. If a right is acquired, extinguished, or barred upon the expiration of a prescribed period of time that has commenced to run by the provisions of any statute before this Act’s effective date, the provisions shall remain in force with respect to that right, notwithstanding Sections 1 to 7 of this Act.

Any rule of construction or presumption provided in Sections 1 to 7 of this Act shall not apply to instruments executed and multiple-party accounts opened before this Act’s effective date.

The provisions of Sections 1 to 7 of this Act shall not apply to persons who die prior to the effective date of this Act.”

397.1005. Evidence of death or status.

In addition to the rules of evidence in courts of general jurisdiction, for the purposes of KRS 397.1001 to 397.1007 only, the following rules relating to a determination of death and status shall apply:

  1. Death shall be deemed to occur when the requirements of KRS 446.400 have been met.
  2. A certified or authenticated copy of a death certificate purporting to be issued by an official or agency of the place where the death purportedly occurred shall be prima facie evidence of the fact, place, date, and time of death and the identity of the decedent.
  3. A certified or authenticated copy of any record or report of a governmental agency, domestic or foreign, that an individual is missing, detained, dead, or alive shall be prima facie evidence of the status and of the dates, circumstances, and places disclosed by the record or report.
  4. In the absence of prima facie evidence of death under subsection (2) or (3) of this section, the fact of death shall be established by clear and convincing evidence, including circumstantial evidence.
  5. An individual whose death is not established under subsection (2), (3), or (4) of this section and who is absent for a continuous period of seven (7) years, during which the individual has not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry, shall be presumed dead. His or her death shall be presumed to have occurred at the end of the period unless there is sufficient evidence for determining that death occurred earlier.
  6. In the absence of evidence disputing the time of death stipulated on a document described in subsection (2) or (3) of this section, a document described in subsection (2) or (3) of this section that stipulates a time of death one hundred twenty (120) hours or more after the time of death of another individual, however the time of death of the other individual is determined, establishes by clear and convincing evidence that the individual survived the other individual by one hundred twenty (120) hours.

History. Enact. Acts 1998, ch. 415, § 5, effective July 15, 1998.

Compiler’s Notes.

Section 13 of Acts 1998, ch. 415, stated:

“An act done before this Act’s effective date in any proceeding and any accrued right shall not be impaired by Sections 1 to 7 of this Act. If a right is acquired, extinguished, or barred upon the expiration of a prescribed period of time that has commenced to run by the provisions of any statute before this Act’s effective date, the provisions shall remain in force with respect to that right, notwithstanding Sections 1 to 7 of this Act.

Any rule of construction or presumption provided in Sections 1 to 7 of this Act shall not apply to instruments executed and multiple-party accounts opened before this Act’s effective date.

The provisions of Sections 1 to 7 of this Act shall not apply to persons who die prior to the effective date of this Act.”

397.1006. Exceptions in which specified survival requirement does not apply.

Survival by one hundred twenty (120) hours is not required if:

  1. The governing instrument contains language dealing explicitly with simultaneous deaths or deaths in a common disaster and that language is operable under the facts of the case;
  2. The governing instrument expressly indicates that an individual is not required to survive an event, including the death of another individual, by any specified period or expressly requires the individual to survive the event for a stated period, but survival of the event or the specified period shall be established by clear and convincing evidence;
  3. The imposition of a one hundred twenty (120) hour requirement of survival would cause a nonvested property interest or a power of appointment to be invalid under the rule against perpetuities, but survival shall be established by clear and convincing evidence; or
  4. The application of a one hundred twenty (120) hour requirement to multiple governing instruments would result in an unintentional failure or duplication of a disposition, but survival shall be established by clear and convincing evidence.

History. Enact. Acts 1998, ch. 415, § 6, effective July 15, 1998.

Compiler’s Notes.

Section 13 of Acts 1998, ch. 415, stated:

“An act done before this Act’s effective date in any proceeding and any accrued right shall not be impaired by Sections 1 to 7 of this Act. If a right is acquired, extinguished, or barred upon the expiration of a prescribed period of time that has commenced to run by the provisions of any statute before this Act’s effective date, the provisions shall remain in force with respect to that right, notwithstanding Sections 1 to 7 of this Act.

Any rule of construction or presumption provided in Sections 1 to 7 of this Act shall not apply to instruments executed and multiple-party accounts opened before this Act’s effective date.

The provisions of Sections 1 to 7 of this Act shall not apply to persons who die prior to the effective date of this Act.”

397.1007. Protection of payors, bona fide purchases, and other third parties — Personal liability of recipient.

    1. A payor or other third party shall not be liable for having made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument who, under this chapter, is not entitled to the payment or item of property, or for having taken any other action in good faith reliance on the beneficiary’s apparent entitlement under the terms of the governing instrument, before the payor or other third party received written notice of a claimed lack of entitlement under this chapter. A payor or other third party shall be liable for a payment made or other action taken after the payor or other third party received written notice of a claimed lack of entitlement under this chapter.
    2. Written notice of a claimed lack of entitlement under paragraph (a) of this subsection shall be mailed to the payor’s or other third party’s main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. Upon receipt of written notice of a claimed lack of entitlement under this chapter, a payor or other third party shall pay any amount owed, or transfer or deposit any item of property held by it, to or with the court having jurisdiction of the probate proceedings related to the decedent’s estate, or if no proceedings have been commenced, to or with the court having jurisdiction of probate proceedings relating to the decedent’s estate located in the county of the decedent’s residence. The court shall hold the funds or item of property and, upon its determination under this chapter, shall order disbursement in accordance with the determination. Payments, transfers, or deposits made to or with the court shall discharge the payor or other third party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court.
  1. A person who purchases property for value and without notice, or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, shall not be obligated under this chapter to return the payment, item of property, or benefit and shall not be liable under this chapter for the amount of the payment or the value of the item of property or benefit. But a person who, not for value, receives a payment, item of property, or any other benefit to which the person is not entitled under this chapter shall be obligated to return the payment, item of property, or benefit or shall be personally liable for the amount of the payment of the value of the item of property or benefit, to the person who is entitled to it under this chapter.
  2. If this chapter, or any part of this chapter, is preempted by federal law with respect to a payment, an item of property, or any other benefit covered by this chapter, a person who, not for value, receives the payment, item of property, or any other benefit to which the person is not entitled under this chapter shall be obligated to return the payment, item of property, or benefit or shall be personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this chapter, or part of this chapter, not preempted.

History. Enact. Acts 1998, ch. 415, § 7, effective July 15, 1998.

Compiler’s Notes.

Section 13 of Acts 1998, ch. 415, stated:

“An act done before this Act’s effective date in any proceeding and any accrued right shall not be impaired by Sections 1 to 7 of this Act. If a right is acquired, extinguished, or barred upon the expiration of a prescribed period of time that has commenced to run by the provisions of any statute before this Act’s effective date, the provisions shall remain in force with respect to that right, notwithstanding Sections 1 to 7 of this Act.

Any rule of construction or presumption provided in Sections 1 to 7 of this Act shall not apply to instruments executed and multiple-party accounts opened before this Act’s effective date.

The provisions of Sections 1 to 7 of this Act shall not apply to persons who die prior to the effective date of this Act.”

397.1008. Uniformity of application and construction.

This chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it.

History. Enact. Acts 1998, ch. 415, § 8, effective July 15, 1998.

397.1009. Short title for chapter.

This chapter may be cited as the Uniform Simultaneous Death Act (1991).

History. Enact. Acts 1998, ch. 415, § 9, effective July 15, 1998.