Request By:
Mr. David Patrick
Mercer County Attorney
Courthouse
Harrodsburg, Kentucky 40330
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your questions, for the county clerk, involve a transfer of probate matters to the district court clerk.
Question No. 1:
"Initially, we are concerned about exactly what cases must be transferred to the district court and how far back in the county court clerk's record must the clerk go on such transfer."
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. Duplicates should be filed with county clerk. See KRS 395.600, et seq., and 24A.120. "Probate matters", as used in KRS 24A.120, is used in the general sense adopted by American law, meaning all matters [wills, estates etc.] of which probate courts have jurisdiction. Black's Law Dictionary, p.p. 1365-1366. While KRS 24A.120(3) provides that papers relating to uncontested probate matters shall be filed in the office of the county clerk, it can only make sense by construing it to mean that any uncontested wills or estates documents must be filed in duplicate in the county clerk's office, the originals being filed in the district court clerk's office. The Supreme Court, in contested cases, can by rule provide for such duplicate filings. KRS 24A.120(3).
Question No. 2:
"We are unclear if the original wills and orders must be transferred in order to satisfy the new requirements."
We have answered that in question 1, above. The originals should go to the clerk of the court of jurisdiction in uncontested cases.
Question No. 3:
"We are concerned with the extent of the liability placed upon the clerk regarding these matters. Obviously, the transmittal of the original documents of such a large volume places the clerk as the official keeper of the record in a difficult position and would like a precise definition as to his duties and the requirements and what liability he has regarding these records."
The county clerk's responsibility in transferring such records has been mentioned above. He simply must follow the statutory provisions as outlined above. In any new uncontested cases [arising on and after January 2, 1978], the duplicate filing system must be applied. Where originals are filed with the district clerk in new cases, the personal representative has the responsibility for seeing that duplicates of such paper are filed with the county clerk. Statutes must be given a practical interpretation to carry out the manifest purpose. Rouse v. Johnson, 234 Ky. 473, 28 S.W.2d 745 (1930) 750. Here the legislature evidently intended to make the district court a specific place of record of wills and estate settlement documents, the county clerk's office being a general place of records since it has historically been an office of record of deeds, mortgages, wills, chattel mortgages, security agreements etc.