Request By:
Mr. Ed Bowling
Bowling Funeral Home
1704 North Main Street
London, Kentucky 40741
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
When you were in school some years ago, you were taught that a funeral bill was a debt against the estate of the deceased, not against the deceased.
Your question reads:
"If this is true, is there not some simple way to either file a lien against an estate or make acquisition of property without filing law suits against, in some cases, as many as 12 bodily heirs of the deceased. "
KRS 396.090(1) reads:
"(1) If the personal estate of a decedent is not sufficient to pay his liabilities, then the burial expenses of the decedent, the cost of the administration of his estate, and the amount of the estate of a dead person, or of a ward, or of a person of unsound mind, committed by a court of record to and remaining in the hands of a decedent, shall be paid in full before any pro rata distribution is made, but this preference shall not extend to a demand foreign to this state."
Thus funeral expenses are by statute preferred claims against the decedent's estate, as applying to the assets in the hands of the personal representative for distribution [see International Harvester Co. v. Dyer's Adm'r, 297 Ky. 55, 178 S.W.2d 966 (1944)], although the administrator need not use more diligence in locating or personally notifying preferred creditors of the estate than other creditors. Albert Neurath & Son v. Dugan's Administrator, 250 Ky. 601, 63 S.W.2d 769 (1933). The court, in Blades v. Blades' Adm'r, 289 Ky. 556, 159 S.W.2d 407 (1942), in explaining KRS 396.090(1), wrote that the personal representative is given authority to pay the burial expenses as a preferred claim against decedent's estate to be paid in full before any pro rata distribution is made. The general creditors, where the estate is insufficient to pay them all, must accept their pro rata share; but such is not the case with the undertakers by reason of this section, since he takes as a preferred creditor.
The preferred claim of the undertaker has its limitations. Such claim does not take precedence over a lien for court cost, or over a mortgage lien, or over a widow's exemption. International Harvester Co. v. Dyer's Adm'r, 297 Ky. 55, 178 S.W.2d 966 (1944) 969. An unrecorded chattel mortgage lien would have preference and priority over the preferred claim for burial expenses, as well as priority over the widow's exemption. Graham v. Graham's Adm'x, Ky., 306 S.W.2d 831 (1957).
The courts have concluded that, by both common law and statutes, the husband is liable for necessities to be supplied his wife, which would include funeral expenses. Colovos' Adm'r v. Gouvas, 269 Ky. 752, 108 S.W.2d 820 (1937) 827. The court in that case cited the rule that "A funeral cannot be delayed for judicial inquiries to determine upon whom the moral obligation to proceed with it [the burial] rests most heavily." Elsewhere the court cited this language from a New Jersey Court: "The court held the claim (for funeral expenses) to be preferred, saying, 'An executor is bound to provide for his testator decent and appropriate Christian burial. '"
CONCLUSIONS
(1) While funeral expenses are preferred claims against decedent's estate, they do not take priority over the widow's exemption nor over certain liens.
(2) Such funeral expenses claims must be proved and filed with the administrator of the estate of the decedent as indicated in KRS 396.010. Albert Neurath & Son v. Dugan's Adm'r, 250 Ky. 601, 63 S.W.2d 769 (1933). See also Johnson v. Reeves, Adm'x, Ky., 556 S.W.2d 445 (1977). See also KRS 391.030, relating to an estate of an intestate. See KRS 396.010, relating to other details in submitting such funeral expenses claims.
(3) While funeral expenses are preferred claims by statute, no lien as such, absent litigation, is involved. Cf. KRS 396.100, dealing with liens. See also 31 AM.Jur.2d, Executors and Admr's, §§ 463, 464, 467 and 468. The preferred claims statute, KRS 396.090, does not designate funeral expenses in terms of a "lien", as such.
Where there is no litigation, the personal representative of the decedent will have to observe the preferred claim for funeral expenses under KRS 396.090. Where litigation becomes necessary as relates to decedent's estate, the courts, of course, will observe KRS 396.090. Cf. KRS 396.080, involving a suit against an heir or devisee by a creditor of the decedent. See Southern Contract Co's Assignee v. Newhouse, 119 Ky. 704, 66 S.W. 730 (1902) 732.