[1994/oagheade.htm]

OAG 94-48

July 8, 1994

Hon. Janis C. Williams

Morgan County Clerk

Morgan County Courthouse

West Liberty, Kentucky 41472

Re: "Recording" of Out-of-State Will.

Dear Ms. Williams:

By letter of March 11, 1993, you asked, in substance, whether a will mailed to your office from out-of-state should be recorded, or whether, in the alternative, you should notify the out of state party wishing to record the will that it must be probated in Kentucky.

In our view, before a will, including one mailed to a county clerk from another state, may be recorded in the records of a county clerk in Kentucky, it must be admitted to probate in this state. Accordingly, a county clerk, upon receiving a will not accompanied by a copy of the order of probate issued by a district court in this state, should return the instrument to the tendering party, together with an explanation that a will offered for recordation in Kentucky must have been first admitted to probate in this state. Discussion follows.

First, "recording" of a will, in the context here addressed, means the entry of a copy of a will into the records of such instruments in a county clerk's office in this state. "Recording" of a will should be distinguished from the maker of a will "depositing" it for safekeeping with a county clerk as authorized by KRS 394.110.

Key Statutes Involved

KRS 394.300, "Recording of wills," provides:

(1) Every will or authenticated copy admitted to record by any court shall be recorded by the county clerk, and remain In his office, except during such time as it may be carried to another court under subpoena duces tecum.

(2)(a) A will probated in the court of (1) Kentucky county and recorded in the office of the county clerk for that county may be recorded in the office of the county clerk for other counties without process of probate in the other county.

(b) Production of an attested copy of the will together with an attested copy of the order of probate shall be required by the clerk of the other county before recordation.

(c) The clerk shall make the same charge for recordation as is otherwise provided for recording a will.

KRS 394.130, "Will not admissible as evidence until probated -- Effect of probate," provides that:

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court; and its probate before such court shall be conclusive, except as to the jurisdiction of the court, until superseded, reversed or annulled.

KRS 394.150, "Nonresident, will of, how probated," provides that:

When a will of a nonresident has been proved out of the state, an authenticated copy and the certificate of probate may be offered for probate in this state. When such copy is offered the court shall presume, in the absence of evidence to the contrary, that the will was duly executed and admitted to probate as a will in the state or country of the testator's domicile, and shall admit the copy to probate as a will in this state.

Analysis

In our view, the express direction of the legislature, as set forth in KRS 394.300, that every will or authenticated copy "admitted to record by any court shall be recorded by the county clerk," indicates that the alternative (recordation of a will that has not been admitted to record) is not authorized, and, therefore, shall not be carried out by a county clerk.

Support for the view expressed immediately above is also found in the fact that the legislature obviously affords a special status to a will that has been "admitted to record" (which we believe equates with the term "probated") in "any court" (meaning any district court of this state, see KRS 394.130). Such special status is indicated by the legislature's requirement that such an instrument be recorded with a county clerk (KRS 394.300(1)), and by the provision that unless it has been so admitted, it shall not be admitted to evidence (KRS 394.130). It would be untoward to suggest, in view of such provisions, that a will that has not been probated, and thus has not had its legal efficacy determined, is entitled to occupy the same status ("recordation," with its attendant legal notice imprimatur) as one that has been probated.

Will From Out-of-State

Turning to your specific question, asking, in substance, whether a will mailed to a clerk from out-of-state should be recorded, or, in the alternative, notice given of the need for an order probating it before it may be recorded, we note that the specific facts concerning the will with which you are concerned are not clear. If the will mailed from out of state is that of a "nonresident," whether it may be recorded will be governed in part by KRS 394.300, as interpreted above, and by KRS 394.150 (above).

In any event, whether the will is that of nonresident of Kentucky mailed to a county clerk in this state from out-of-state, or the will of a resident so mailed, before it may be "recorded" by a county clerk in this state, it must be "admitted to record" (probated) in a district court of this state. See KRS 394.300(1), KRS 394.130, and 394.150 (above), and the preceding discussion in this opinion.

Should it be contended that the phrase "any court," as used in KRS 394.300(1) (see above), includes a court in another state, such that a will from another state is required to be recorded under that provision (KRS 394.300(1)) upon a showing of its admission to probate in another state, we believe the phrase "any court," as used in KRS 394.300(1), means any district court in Kentucky. This view is buttressed, on one hand, by KRS 394.130, which provides that before a will may be received in evidence it must be allowed and admitted to record by a "district court." The phrase "district court," as used in Kentucky's statutes, unless the context or specific words require otherwise, obviously refers to a district court in Kentucky. On the other hand, KRS 394.150 (above) provides for probate in this state of the will of a nonresident proved out of state. See Penn v. Pennsylvania Co. for Insurances, Etc., 294 Ky. 271, 171 S.W. 2d 437, 441-442 (1943). If a will could be recorded by a county clerk solely by virtue of having been admitted to probate in another state, KRS 394.150 might be rendered relatively superfluous, a character which is inconsistent with the import of Kentucky's statutes.

In order to be recorded by a county clerk, a will must have been first allowed and admitted to record (probated) by a district court of this state. A will received by a county clerk, which does not have necessary documentation to establish that it has been admitted to record (probated) by a district court of this state, should be returned to the person who submitted it. The clerk should include with the returned instrument, information regarding what is required in order for it to be recorded. See for example, KRS 394.150 and KRS 394.300.

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL

Gerard R. Gerhard

Assistant Attorney General