How does my dad find out if he was named in my grandfather's will?
04/10/2009 - Category:Wills and Estates - Probate - State: IL #15946
My grandfather passed away 6 weeks ago and my dad is estranged from his step-mother. My dad was not able to go to the funeral which was in another State. My dad knows he was in the Will but nobody has contacted him yet. What can he do. He will not call his step-mother and does not know my grandfather's attorney's name.
When a person dies, a personal representative (also known as an administrator or executor) will gather and inventory all of his or her property at the time of his or her death and distribute the property according to the instructions in the deceased person’s will. An executor is nominated by the testator for the purpose of executing the will. Responsibilities include gathering up and protecting the assets of the estate, obtaining information in regard to all beneficiaries named in the will and any other potential heirs, collecting and arranging for payment of debts of the estate, approving or disapproving creditor's claims, making sure estate taxes are calculated, forms filed and tax payments made, and in all ways assisting the attorney for the estate. The personal representative will be appointed in a probate proceeding. The personal representative must usher the deceased’s property through the probate process, subject to the state's probate rules and procedures. In many states, the court maintains tight control over the activities of the personal representative. The personal representative typically must file a probate petition and notify all those persons named in the will, and give anyone who chooses a chance to file a formal objection to the will. A hearing on the probate petition is typically scheduled several weeks to months after the matter is filed. If no objections are filed the court generally approves the petition and formally appoints the personal representative.
The following are Kentucky statutes:
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court; and its probate before such court shall be conclusive, except as to the jurisdiction of the court, until superseded, reversed or annulled.
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.
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.
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.
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.
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.
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.
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.
394.250. When action in circuit court stays proceedings under will — Court may stop distribution.
An action filed in the circuit court, 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.
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.
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.
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.
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.
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.
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 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.
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.
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.
395.190. Time for distribution of estate.
A personal representative may distribute the estate of a decedent six (6) months after qualification.
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 or 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 recommendation; and instead of acting personally, employ one 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.
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 cost, except that an alleged creditor whose claim has been denied in writing by the fiduciary may commence action immediately after receipt of such denial.
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04/10/2009 - Category: Probate - State: IL #15946
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