Affidavit of Descent & Deed of Distribution
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PROBATE & ESTATE ADMINISTRATION
Affidavits of Descent and Deeds of Distribution in Kentucky
A parent died years ago and left the family farm, the house, or a few acres. Everyone knew who was supposed to get it. Nobody recorded anything. The family has used and paid taxes on the property ever since, and the county record still shows an owner who died in 1998.
Nothing goes wrong until someone tries to sell, refinance or insure it. Then a title examiner finds the gap, the transaction stops, and the family discovers that establishing who actually owns the land is now a project involving heirs nobody has spoken to in years.
An affidavit of descent and a deed of distribution are the instruments that close these gaps. They are inexpensive when handled promptly and progressively harder with every passing generation.
Kentucky land with an unresolved title? It only gets more expensive. Call (502) 348-2108.
What These Documents Do
When someone dies owning Kentucky real property, title does not transfer itself in the county records. Something has to be recorded that shows how ownership moved from the deceased to the people now entitled, so that a future buyer, lender or title insurer can follow the chain.
An affidavit of descent is used where a person died without a will. It is a sworn statement recorded in the county where the land lies, identifying the deceased, the date of death, and the heirs at law who take under the Kentucky intestacy statutes, so the record shows who now holds the property.
A deed of distribution is used where an estate has been administered and a personal representative conveys real property to the beneficiaries entitled under the will or by intestacy. Which instrument fits depends on whether there was a will, whether an estate was opened, and how much time has passed.
Why the Gap Matters
Families frequently ask whether it is really necessary when everyone agrees. The answer concerns everyone who comes afterwards, not the family now.
Unmarketable title
A title examiner traces ownership through the recorded chain. Where the record shows a deceased owner and nothing after, the chain stops. A buyer cannot get title insurance, a lender will not lend, and a sale collapses, often at a late stage and after costs have been incurred. Insurance can also become difficult where the named insured is a deceased person.
The problem compounds
Each generation multiplies the number of people whose signature or joinder may be required. What began as three siblings who all agreed becomes eleven cousins across four states, some estranged, some deceased with their own heirs, and some who cannot be located at all. The 2026 rewrite of Kentucky intestacy law in KRS 391.010 adds a further wrinkle, since who inherits now depends on when the death occurred, and older deaths are governed by the prior rule.
This is why we encourage families to deal with it as soon as it is noticed rather than when a transaction depends on it. The work is modest now and can become genuinely difficult later.
What Is Required
Establishing the heirs
Identifying who takes under Kentucky intestacy as at the date of death, which for deaths on or after July 15, 2026 follows the rewritten KRS 391.010 and for earlier deaths follows the rule then in force.
The recorded deed and source of title
Confirming exactly what the deceased owned and how, since a fractional or life interest changes what passes.
A properly drafted instrument
An affidavit of descent or a deed of distribution meeting Kentucky recording requirements, including the acknowledgment rules in KRS 382.130 and the content and consideration certificate requirements in KRS 382.135.
Recording in the right county
Filed with the county clerk where the land lies, with the recorded copy returned to the family.
Dealing with missing or unknown heirs
Where an heir cannot be located or a branch of the family has died out, additional steps may be needed to produce a title a buyer will accept.
Coordinating with any estate
Where a probate or simplified procedure is also required, doing both together rather than discovering the second one later.
Where Kentucky Trips Families Up
Two Kentucky-specific rules cause more of these title gaps than anything else, and both run against what people assume.
The first is survivorship. Kentucky abolished the common law right of survivorship, so under KRS 381.120 a deed conveying property to two people creates a tenancy in common unless the instrument expressly says otherwise. The survivor does not automatically take the whole. Families who believed the property passed to a surviving co-owner discover, sometimes decades later, that half of it went to the deceased heirs and was never dealt with.
The second is that Kentucky has no transfer-on-death deed for real property. Bills failed in 2018, 2023 and 2024, and Senate Bill 34 in the 2026 session passed the Senate in March and died in House committee. Anyone who believed they had recorded a beneficiary deed here has recorded something that does not exist in Kentucky law.
Both of these produce the same outcome: property that everyone thought had transferred, and a record that says otherwise. See deed preparation and real property transfer.
When You Need This
These are the situations that bring people in, usually with a transaction already under way.
01
A sale has stalled on title
The most common and the most urgent. A buyer title work has found the gap and the closing cannot proceed until it is cured.
02
Refinancing or a home equity loan
Lenders require clear title. A chain that stops at a deceased owner will stop the loan.
03
A parent died without a will
Where there is no will and land is involved, an affidavit of descent recorded now saves the next generation a considerably harder problem.
04
An estate was administered but no deed recorded
The probate was completed and everyone assumed that transferred the land. It did not; a deed of distribution was needed.
05
Farm and mineral interests
Fractional interests passed down informally across generations are where these problems are worst, and where they are most worth fixing before another generation passes.
If a closing is waiting on this, tell us when you call and we will treat it accordingly. (502) 348-2108.
What to Bring
Most of what is needed is documentary, and families usually have more of it than they think, often in a folder nobody has opened in years.
The deed showing how the deceased acquired the property is the starting point, because it establishes what they actually owned. A death certificate establishes the date, which determines which version of the intestacy rules applies.
Then the family information: the names of the spouse and children living at the date of death, whether any predeceased and whether they left children of their own, and current addresses where known. This is the part that takes time, particularly for older deaths, and it is worth starting before the appointment.
If any prior affidavits, probate papers or estate documents exist, bring them. Partial work done years ago is often useful even when it was never completed.
- The deed showing how the deceased acquired the property
- A certified copy of the death certificate
- The will, if there was one, and any probate paperwork
- Names of the surviving spouse and children as at the date of death
- Details of any child who predeceased and their own children
- Current addresses for the heirs, where known
- Any prior affidavits or estate documents in family records
- Property tax bills, which often help identify the parcel
Clearing Kentucky Title in Bardstown and Louisville
Thomas Hamilton has been admitted to the Kentucky bar since 2011 and has concentrated on elder law and estate administration since 2014. He is a member of the Kentucky Bar Association Elder Law Section and the National Academy of Elder Law Attorneys.
We prepare and record these instruments for property throughout Nelson, Bullitt, Washington, Marion, Larue, Hardin, Anderson, Spencer and Jefferson counties, from 117 E. Stephen Foster Avenue in Bardstown and the First Trust Centre, 200 S. 5th Street in Louisville.
Where a closing is pending we will tell you honestly what can be done and how quickly. The initial consultation is free. Schedule a consultation.
Why These Problems Persist
Nobody records anything
The family agrees informally, the property is used and taxes are paid, and no instrument is ever filed. The agreement is invisible to the county record.
Assuming probate transferred the land
An administered estate does not by itself move title. A deed of distribution or an affidavit still has to be recorded.
Assuming a joint deed carried survivorship
KRS 381.120 says otherwise unless the deed expressly provides for it. This single assumption creates more Kentucky title gaps than any other.
Relying on a transfer-on-death deed
Kentucky does not have one, despite four legislative attempts since 2018. A recorded instrument of that kind does not do what its signer intended.
Waiting for a reason
The reason is usually a pending sale, at which point the work is urgent and the heirs are harder to reach. Every year of delay adds people to the problem.
Paying taxes and assuming that is ownership
Paying the property tax bill for thirty years does not put you in the chain of title. It is evidence of nothing to a title examiner.
FREQUENTLY ASKED QUESTIONS
Common Questions About Clearing Title
What is an affidavit of descent?
It is a sworn statement recorded with the county clerk where Kentucky land lies, identifying a deceased owner, the date of death, and the heirs at law entitled to the property under the intestacy statutes. It closes the gap in the recorded chain of title so a future buyer, lender or title insurer can see how ownership passed.
My father died years ago and we never did anything with the land. Is it too late?
No, though it is harder than it would have been. These situations are generally solvable through an affidavit of descent, a deed of distribution, or a proceeding to establish the chain of title. The difficulty grows with each generation as the number of potential heirs multiplies and people become harder to locate, so the sensible time to address it is now rather than when a sale depends on it.
We all agree who owns it. Why does anything need recording?
Because the agreement is invisible to the county record, and a title examiner works from the record. A buyer cannot obtain title insurance and a lender will not lend where the chain stops at a deceased owner. Insurance can also become difficult. The recording exists for everyone who comes after your family, not for your family.
Doesn’t paying the property taxes make us the owners?
No. Paying taxes for many years is not the same as holding record title and does not put you in the chain. It is a common and understandable assumption, and it will not satisfy a title examiner when the property is sold or mortgaged.
The deed named my parents jointly. Didn’t it pass to my mother automatically?
Only if the deed expressly said so. Kentucky abolished automatic survivorship in KRS 381.120, so a deed to two people creates a tenancy in common unless survivorship is stated. If it was not, your father half passed to his heirs and needs to be dealt with. We read the recorded deed first, because that is where the answer lies.
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CONTACT
Fix the Chain Before It Costs You a Sale
These gaps are cheap to close now and expensive to close under a closing deadline. Call attorney Thomas Hamilton at (502) 348-2108 or use the form below.
Phone:
Address:
117 E. Stephen Foster Avenue, Bardstown, KY 40004