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Real estate and probate

It may be tempting, in dealing with a relatively small estate of a loved one who has passed away where there is no will, to avoid probate. This is especially tempting when the only asset of value is a piece of real estate that is passing to the children of the deceased. It is tempting because real estate, unlike some types of property, passes directly to intestate heirs. All that is necessary is for an affidavit of descent to be filed in the county clerk’s office. However, there is one caution. If there are any creditors of the deceased remaining that could file a claim against the estate, avoiding probate prevents the time limitation on such claims from running. So, if the heirs then try to sell the property a few years down the road, that creditor could make a claim on the property and complicate or ruin the sale. Probate provides a six month time limit for creditors to file their claim leaving, no doubt as to clear title on the property.

June 3, 2007 Posted by | Estate Planning, Family Law | 1 Comment