Request By:
Ms. Dora N. Henry
Estill County Clerk
Courthouse
Irvine, Kentucky 40336
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Sometimes the county clerk is requested to make certified copies of court orders showing appointment of administrators, executors, etc., in connection with the administration and settlement of estates.
Your question: Is the clerk responsible for determining whether the estate has been settled before making the certified copy? The answer is "no". See KRS 24A.120(2), relating to the filing of documents involving probate jurisdiction of district court. Duplicate papers relating to uncontested probate matters and contested probate matters must be filed for record in the county clerk's office. Every fiduciary, under KRS 395.105, must, before entering upon the execution of his trust, receive letters of appointment from the district court having jurisdiction. The appointments are effective with the signing of the order of appointment by the judge.
The clerk, when requested, must furnish a certified copy of such fiducial appointments. Whether or not a final settlement of the estate has been made is irrelevant. See KRS 61.874(2), permitting a public agency to prescribe a reasonable fee for making copies of public records which shall not exceed the actual cost thereof, not including the cost of staff required.
You say suppose the certified copy of the order of appointment is given to the administrator named in the copy, and he uses the copy to show his appointment, when actually the estate has been settled. You ask: Is the clerk responsible in any way to any person who may be led to believe that the trust has not been terminated?
The answer is "no". The clerk can only furnish a copy of the clerk's record. In this situation the order of appointment is a part of the records of the clerk. You are under no responsibility to tell the public that an appointment has or has not been terminated. The clerk merely responds to a request for a copy of a specific record. See KRS 61.870 and 61.872 [right to inspect public records] . Then the true copy of the record will simply speak for itself. But the clerk has no duty to inform the public as to the precise active or inactive status of the document certified.
Another question reads:
"When wills are filed in our office for safekeeping, who has the right to pick up the will and sign a receipt for same? Does this include people who have a power of attorney from the person to whom the will belongs?"
KRS 394.110, as amended in 1978 [Ch. 84, § 23, effective June 17 1978], reads:
"A will may be deposited by the person making it, or anyone for him, with the district clerk of the county of his residence for safekeeping, upon payment of a fee as provided for in KRS 64.012 to the clerk. The clerk shall receive, keep, and deliver the will according to the directions on a sealed envelope. If there are no such directions, or the party entitled does not apply, the will shall be handed to and opened by the district court, after the death of the testator, and there retained for probate. "
Under the statute the maker of a will, or anyone acting for the maker, may deposit the will with the district clerk of the county of his residence for safekeeping, upon payment of a fee, etc.
Prior to the 1976 and 1978 amendments of KRS 394.110, a will could be left for safekeeping with the county clerk of the county of the maker's residence. The role of safekeeping was first switched over from the county clerk to the clerk of the district court in the 1976 amendment [Ex. Sess., Ch. 14, § 354], effective January 2, 1978.
Since there is nothing in KRS 394.110, as last amended in 1978, which establishes any retroactive application, it is our opinion that any will left by the maker of the will, or anyone acting for him, with the county clerk before January 2, 1978, will be governed by the provisions of KRS 394.110 that authorized the county clerk to safekeep the will. In that time frame the county clerk is required to receive, keep, and deliver the will according to the directions on a sealed envelope. If there are no such directions, or the party entitled does not apply, the will must be handed to and opened by the district court in the county of the maker's residence, after the death of the testator or testatrix, and there retained for probate.
Thus where the will is left with your office for safekeeping prior to January 2, 1978, the maker of the will, or an agent designated in writing by the maker, including a power of attorney, can pick up the will at anytime during his lifetime, upon giving you a receipt therefor.
After the maker's death, you are required to follow any directions given you by the maker on a sealed envelope. If there are no such directions, then any party entitled to apply to pick up the will, as may be determined from the text of the will, may so apply and you would be required to hand over the will to such party upon getting a receipt therefor. If such party entitled to the possession of the will does not apply for possession, then you must hand the will to the district court of the county of the maker's residence. "Parties entitled to apply for possession of the will" would include the maker's surviving spouse, devisees or legatees, or the named executor or executrix, under the terms of the will, and a purchaser of maker's property in good faith. The court declared in