WHAT IS PROBATE?
Indiana probate is thought of, or can be described as, the process of passing on one’s property at death through a court process. This process is frequently called opening up and Estate or Opening up Probate.
A person who has an interest in an Indiana Estate can file a petition with the court in the county where the resident passed away or the county of residence.
Not all property which is owned at death is subject to the probate process. If the decedent planned properly before his or her death, the probate process can be entirely avoided.
For instance, many insurance policies and retirement funds do not have to be probated because there are beneficiary designations in the documents. The same is true with bank accounts, if the bank account is titled as a “pay on death” POD account. Another example is transfer of a piece of real estate. If the decedent owned a piece of release estate with another person, and the property is deed as “husband and wife” (tenants by the entirety) or “joint tenants with rights of survivorship”, the property passes to the other person at the moment the co-owner died.
One of the most common forms of leaving property at the time of death is through an Indiana revocable trust. Ask your estate planning attorney about how a trust may fit into your estate plan, and whether one is right for you. Probate litigation lawyers in Indiana will tell you that, although will substitutes are intended to “avoid” the probate process, that does not always happen.
Why? Well, families, heirs at law, next of kin, beneficiaries, prior beneficiaries, and dis-inherited family members can decide fight over property and money when someone dies. This leads to probate litigation over such things as joint accounts, life insurance, IRA’s and revocable living trusts. Estate lawsuits, then, are not limited to will contests or challenges to a last will, or even a challenge to the probate.
What else do you need to know about the probate process in Indiana? To put it another way, probate includes the process of paying the final debts, expenses and expenses related to the last illness for the decedent. Indiana Estate lawyers will explain that the most common debts of the decedent are any mortgage on Indiana real estate, federal and Indiana income tax, expenses associated with the upkeep and maintenance of the decedent’s home, any outstanding loans, bills and credit card balances. The executor of the decedent’s Estate is called the personal representative or administrator/administratrix.
DUTIES OF A PERSONAL REPRESENTATIVE
An executor plays an important role in the management of an Indiana estate. It is extremely important for anyone who has been named in this role or for a person who is thinking of establishing a personal representative or an executor to understand the fiduciary responsibilities. Executors have a legal and fiduciary duty to the beneficiaries of an estate. In the event that they act in violation of any of these legal requirements, the executor could be held responsible in legal action.
The task at hand can seem overwhelming or daunting if you have recently been named as an Indiana executor. There may be stress and anxiety in approaching the unknown or in knowing your specific responsibilities. You must be appointed by Indiana probate court to be formally recognized as the estate’s executor. The appropriate court, therefore, must receive paperwork such as the last will and testament and a petition for probate.
At this point in time the court will review this information and appoint you as the will’s executor and provide you with letters of probate that gives you the legal responsibility and authority to manage estate assets and debts. The fiduciary duty to the beneficiaries of the estate requires a few things from you as you serve in your capacity as an executor.
EXECUTOR’S LEGAL RESPONSIBILITIES?
First of all, you have to perform all of your duties as executor and in an honest manner and exercise good faith throughout. You must keep beneficiaries informed about your status, notify creditors of the status of the estate, and satisfy any other requirement that the court might deem necessary, in addition to transparently managing the closure of the estate. One of the more important duties is preparing an accounting of all assets and expenses. Furthermore, it is expected that you will not take any specific actions that enriches you directly, including taking or selling any of the assets inside the estate for your own personal benefit.
The court could be required to take action if you violate the fiduciary duty of your role as an executor. You could be removed from the executor position if it can be shown that you failed to perform any of these duties properly and when beneficiaries request more transparency, it is possible that they might seek your removal. It is very important that you remain in contact with the beneficiaries and the court throughout serving in this role as an estate executor.
THE PROBATE PROCESS
There is a defined process for probate in Indiana, and here are the steps with a brief explanation. Probate is required if the Decedent left assets that need to be probated. An asset requires probate if it was solely owned by the Decedent at their time of death. For instance, if the Decedent left a bank account that was titled in his or her name only, then probate will probably need to be required. The same is true with a home. If your grandmother passed away and the house was in her name only then a probate estate will need to be opened.
Here are the steps to an Indiana probate.
- The matter will need to be filed in the Circuit or Superior Court in the county in which the Decedent lived at his/her time of death. If the Decedent lived in LaPorte County, the matter will be filed in one of the LaPorte County courts in either Michigan City or LaPorte.
- If there is a will – typically the named personal representative will file a petition to accept the will into probate along with a petition to appoint executor or personal representative. If there is no will, one of the legal heirs under the intestacy statute will need to file the petition to be appointed personal representative or executive.
- Once the court approves the appointment, the clerk of the court will issue letters of administration (letters testamentary) – this is the formal document that gives the executor the legal authority to act of behalf of the Decedent’s estate.
- The executor will then apply for a Tax ID number from the IRS for the estate and open an estate bank account.
- The executor will send out specific notices to beneficiaries, creditors and publish notice of the estate in the local newspaper.
- The executor will identify all assets and debts of the estate and prepare an inventory identifying this information.
- The executor will carry out the specific bequests identified in the last will and testament. If there is no will, the executor will liquidate all assets for distribution to the heirs as required by law.
- The executor will dispute or pay any claims against the estate.
- Once the statutory period for filing claims has elapsed, the executor will prepare a closing statement showing all the assets and proposed distribution for the beneficiaries. If the beneficiaries consent to the distributions and approve the accounting (closing statement), the personal representative will file a petition to close the estate with the court, and if approved, distribute the assets and pay the debts as identified on the accounting.
THE FOLLOWING DISPUTES CAN HAPPEN AFTER A PERSON DIES:
- Challenging the final Will
- Valuation of the Estate Property
- Carrying out the intentions of the Decedent
- Challenging the Executor or Personal Representative
If you have any questions about a Dispute over an Indiana Estate, you can give us a call at (219) 690-8997.