Losing a loved one is one of the most difficult situations that anyone may face. In the State of Indiana, if the responsibility for a family member’s estate falls on you after that person’s death, contact an Indiana probate attorney at once to advise you regarding the probate process.
What is probate? How is probate handled by the Indiana courts? What difficulties and challenges may arise in the probate process? Is there a way to avoid probate? If you’ll keep reading this brief discussion of the probate process in Indiana, you will learn the answers to these questions.
What Is Probate and How Does the Process Work?
Probate settles and completes a deceased person’s financial affairs. It gives someone (a “personal representative”) named by the decedent – usually the spouse or another close relative – authority to pay the decedent’s taxes and debts and to transfer what remains to the decedent’s beneficiaries.
In Indiana, probate begins when the personal representative of the estate files the will and a “petition for probate” with the probate court in the county where the decedent resided. If the decedent was not a resident of Indiana, the documents are filed in the county where the decedent owned real estate.
Typically, one of a personal representative’s first duties is to open a checking account in the estate’s name. That account will receive anything that may be owed to the decedent, and it will be used to pay the decedent’s remaining debts, taxes, and probate expenses.
What Assets Are Not Probatable?
Probate in Indiana applies only to the assets that a deceased person owned exclusively and singularly in his or her own name at the time of death. Probate in Indiana does not apply to:
- property that was held in joint tenancy (co-owned property)
- property that was held in tenancy by the entirety (co-owned by a married couple)
- securities, vehicles, and real estate with transfer-on-death deeds that name beneficiaries
- life insurance proceeds, retirement accounts, and payable-on-death bank accounts
- assets that have been transferred to a living trust
The Indiana probate process can create some complicated challenges, so if you have been named as the personal representative of an estate, you must not hesitate to seek the advice and services of an Indiana probate lawyer who is familiar with this state’s probate courts and the probate process.
Can Probate Be Simplified?
Estates with a total value of less than $50,000 can avoid the full probate process in Indiana. The personal representative of an estate can distribute all of the assets immediately to the beneficiaries and then file a closing statement with the probate court.
Alternatively, the beneficiary of an estate may take advantage of an affidavit process by preparing a sworn affidavit which explains why he or she is entitled to particular assets.
When the beneficiary presents the sworn affidavit and a death certificate to an institution holding an asset (such as a bank), the institution will honor the affidavit and release the asset.
Personal representatives and beneficiaries who have any questions or concerns regarding smaller estates or who encounter any difficulties in these circumstances should not hesitate to seek the advice and services of an Indiana probate attorney as quickly as possible.
Can Probate Be Avoided?
Probate court is notoriously costly and time-consuming. The process may take as long as a year. Probate requires an estate to pay not only a decedent’s debts and taxes but also appraisers’ fees, lawyers’ fees, court costs, and other expenses, but avoiding probate is not necessarily difficult.
Giving away assets and property while you’re alive can help you reduce probate costs or avoid probate entirely. If you do not own an asset at the time of your death, it is not probatable, and generally speaking, the cost of probate is determined by the value of your estate at that time.
Perhaps the most popular option for avoiding probate is to establish a revocable living trust while you are alive and of sound mind. The properties and assets that you transfer into a revocable living trust are not probatable.
An Indiana probate lawyer can help you set up a revocable living trust, explain the details about how it works, and explain your other options for shielding your estate from the probate process.
What Should Executors Know About Debts and Taxes?
Whether or not probate is conducted by an Indiana probate court, the personal representative of an estate must use the estate’s assets to pay its debts and taxes. If probate is required, the executor must have a notice of the proceeding published in a local newspaper and mailed to all known creditors and heirs listed in the original petition for probate.
Known creditors must then be re-notified by the personal representative and sent a second copy of the notice within a month of its first publication. Creditors have three months from the first publication date to make a claim against the estate.
A personal representative also must file final federal and state income tax returns for the decedent. An income tax return may also be needed for the estate itself. However, a federal estate tax return probably will not be required. As of 2022, there is no federal estate tax on estates valued at less than $12,060,000, and Indiana abolished its state inheritance tax in 2013.
What Should You Know About Probate Disputes?
A probate dispute can be both acrimonious and legally complicated. If a dispute erupts over a loved one’s estate, you must be advised and represented by a probate attorney who aggressively defends your rights and effectively protects your best interests. Probate disputes may include:
- conflicts over who should be the personal representative of the estate
- disputes among the beneficiaries of a trust or a will
- “intestate succession” issues when someone dies with no will
To say that the probate process is complicated is an understatement. Personal representatives and surviving family members who need legal guidance and/or representation regarding any probate matter in this state should contact an experienced probate lawyer as early as possible.
Probate in Indiana entails a number of deadlines and time limits, so failing to take swift action could be a costly mistake. A probate attorney will ensure that you are treated fairly throughout the process and that your rights and interests are aggressively and effectively protected.