Everything to Know About Probate in Indiana in 2021

elderly estate planning

Elderly estate planning will inevitably include discussions of probate. You may wish to plan for a smooth probate process or investigate how to limit or eliminate your estate’s involvement with a probate court. Attending these issues in life significantly strengthens your control of what happens to your estate. Otherwise, a court will step in and make decisions for the distribution of an estate per Indiana law for estates valued over $50,000.

What Is the Purpose of Probate?

The probate’s primary function is to confirm that an estate settles its debts and taxes before passing assets to heirs. The court will freeze an estate so that its assets do not change hands until all issues have been resolved. At times, heirs may need to be identified and their shares of an estate established. The court where an individual died or owned real estate will oversee this process. 

When the decedent has left a will, the court confirms its validity and processes challenges to a will when necessary. The court recognizes the personal representative, also known as the executor, named in the will or appoints one if no will has been written or the named personal representative can no longer fill the role. 

Advice from an estate planning lawyer in Indiana will aid you in the development of a will. Legal consultations provide an opportunity to learn how your estate plan could play out during probate. You will also have a chance to plan for probate court fees and make decisions about naming a personal representative and contingent beneficiaries. During elderly estate planning, heirs are sometimes elderly, and contingency planning becomes more prudent than ever. 

elderly estate planning

Basic Probate Process

A typical estate spends about six months moving through probate. Presenting a death certificate to the applicable court starts the process. The following legal steps will be:

  • The court validates the will.
  • The court formally assigns management of the estate to the personal representative.
  • Personal representative posts a bond if required.
  • Personal representative informs creditors and beneficiaries.
  • Personal representative calculates the estate’s current value.
  • Personal representative pays taxes, debts, court fees, and all other estate expenses.
  • Personal representative distributes assets.

When the decedent left a will, the court acts in a relatively hands-off manner as the personal representative completes the necessary tasks. It will issue the personal representative a “letters testamentary” that grants authority to complete the estate business. However, if claims are filed against the estate, then the court must take an active role, as a determination may need to be made whether to pay the claim or not.

In the absence of a will (otherwise known as intestate), the court will manage more details and decisions. A court will appoint a person to be in charge of the estate and issue “letters of general administration” to that person. 

Generally, the validation of a will is a routine matter. The assistance of an Indiana lawyer when preparing a will could prevent mistakes that raise problems with validation. 

The determination of an estate’s value often involves professional appraisals. The cost of paying for this service will come out of the estate. 

Selection of Heirs

 By preparing a will, you get to say who benefits from your estate. However, not all estates are left behind with proper documentation from the owner about what to do despite most people understanding the importance of estate planning in Indiana. Such an estate is intestate. During probate for an intestate estate, the court will evaluate claims from potential heirs filed with the court.

State law guides decisions about who gets what. A surviving spouse often has a right to the entire estate if there are no decedent children. The number of children and remarriages affect the percentage of an estate that a spouse can inherit. State law would divide the estate between the spouse and children and children from other unions. Surviving parents sometimes enter the equation as well. If there are no children, then the parents could receive 25% of the estate while the remaining 75% goes to the surviving spouse.

Even a person who had no spouse and no children and whose parents are deceased will likely have heirs according to state law. Grandparents, aunts, uncles, and cousins all have a right to inherit in the absence of closer relatives. 

Responsibilities of Personal Representatives

 Most of the work of an estate falls on the shoulders of the personal representative. 

 Primary duties include:

  • Notifying creditors
  • Filing final state and federal tax returns
  • Making an inventory of all property
  • Dealing with claims against the estate
  • Protecting estate assets
  • Liquidating assets when necessary
  • Accounting for all estate finances

People in this role often consult an Indiana lawyer while performing these duties. Estate planning in Indiana prior to someone’s passing can include setting aside estate funds to pay for court and lawyer fees during probate. 

elderly estate planning

What Parts of an Estate Go Through Probate?

Assets that do not have documentation indicating an automatic transfer of ownership upon death generally require probate. Common assets of this nature are:

  • An inheritance bequeathed to a beneficiary who has already died
  • Real estate owned solely by the decedent
  • Bank accounts solely in the name of the decedent without a beneficiary designation
  • Personal property that does not have ownership titles like furniture
  • Real Estate owned as Tenants in Common 

What Parts of an Estate Do Not Need Probate?

 Many portions of an estate will not need to be processed by a probate court. Their documentation transfers ownership on death. Probate is not needed for:

  • Homes and bank accounts held in joint tenancy
  • Real estate held in tenancy by the entirety, or where a Transfer on Death Deed has been filed
  • Bank accounts with payable-on-death beneficiaries
  • Securities and vehicles registered on transfer-on-death forms
  • Retirement accounts with beneficiaries

Guidance When You Make Important Estate Planning Decisions

Completing your estate plan paperwork brings peace of mind and spares your family from a prolonged probate process. To meet with an estate planning lawyer in Indiana, contact us at Webster & Garino LLC today.