Estate Planning/Probate

Probate

Hamilton County, Indiana Probate Estates

Probate is the term of art used in the legal word to administer and distribute the assets of someone’s estate when they pass.  The surviving spouse or other close family member, often is given authority to gather the deceased person’s assets, pay debts, pay taxes, and ultimately transfer the remaining assets to the people who are named beneficiaries in a Will or in the absence of a Will, by state statute.

What goes into an Indiana Probate Estate?

Any asset that the deceased person owned in his or her own name alone must go through probate. Cars, Homes, bank accounts, investments, personal property, etc that do not have any sort of joint owner on the title must be included.  Often times, with proper Estate Planning, many of these assets can pass by operation of law and avoid the probate process altogether.  If set up properly, assets such as life insurance, retirement accounts, Property held as joint tenants with rights of survivorship or by the entirely, car titles with proper transfer on death forms, and living trusts will all avoid the probate process.

It is important up front to determine the value of the estate by pooling all the assets minus liens and encumbrances.  if the amount is less than 50,000 you have two additional options instead of a formal probate estate.

Types of Indiana Probate Estates

1.) Indiana Small Estates – The assets of the gross estate must be $50,000 less liens and encumbrances.

     Option 1- small estate affidavit. I.C.29-1-8-1

This includes all property owned by the person who died. “Gross estate” means you subtract the value of any liens or mortgages when determining the value of the estate.  The person must have died at least 45 days ago. There must not be any petition for an appointment of representative filed in or granted by any court. The person asking for the property must be entitled to the property.  Examples = To get money out of bank accounts; to get money out of a safety deposit box receive paychecks owed to the person who died; get a motor vehicle title; Life insurance benefits payable on the death of the person who died. Once you complete the small estate affidavit you must then present it to the person or institute that is holding the property.

     Option 2– Summary Administration- I.C. 29-1-8-3 and 29-1-8-4 -The assets of the gross estate must be $50,000 less liens and encumbrances and does not exceed the sum of $50,000 including the costs and expenses of administration and reasonable funeral expenses.

The personal representative or a person acting on behalf of the distributees, may immediately disburse and distribute the estate to the persons entitled to it and file a closing statement after cost of administration and reasonable funeral expenses. Notification to creditors is not necessary.

If the estate contains Real Estate: An affidavit may be recorded in the office of the recorder in the county in which the real property is located. The affidavit must contain the following:

The legal description of the real property and the following statement “It appears that the decedent’s gross probate estate, less liens and encumbrances, does not exceed the sum of the following:  ($50,000), the costs and expenses of administration, and reasonable funeral expenses.”

The name of each person entitled to at least a part interest in the real property as a result of a decedent’s death, the share to which each person is entitled, and whether the share is a divided or undivided interest.  A statement which explains how each person’s share has been determined.  A closing statement must be filed as well.

2.) Unsupervised Administration- estates over $50,000

Unsupervised administration is type of Indiana Probate Estate that is in most cases is quicker and more cost friendly.   An Unsupervised estate administration can be requested by an individual by one of two ways.   The decedent’s Will specifically calls for Unsupervised Administration or, if no Will,  all beneficiaries sign a document consenting to the unsupervised administration. Beneficiaries will be determined by Indiana Intestacy Laws.  I.C. 29-1-2. To open the estate requires a petition to be filed along with Appoint of the Personal representative.    Once a Personal Representative is appointed then they can proceed without Court supervision.  The personal representative can collect and distribute assets, pay creditors, and file taxes without Court involvement.  Unless there are objections from Beneficiaries this process can move smoothly.  An unsupervised administration can be changed to Supervised for various reasons.  A personal representative must file closing documents to the Estate and any objections to the closing must be filed within 3 months of the date of filing.

3.)Supervised Administration- estates over $50,000.

A Supervised Administration is very similar to unsupervised but is used when parties do not agree on issues.  Before a personal representative in a supervised estate can take certain actions such as making distributions, paying creditors or selling properly to name a few, they must petition the court for approval.  The Court requires all of the parties to be notified and are given the chance to object.  All major decisions must go through the Court.  An inventory of assets must be prepared and filed with the Court so all parties will have access to it.  This process typically costs more and take a little longer due to the paperwork and filing requirements to make decisions.